STATE OF NEW JERSEY v. DAVID HOHSFIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5113-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID HOHSFIELD,

Defendant-Appellant.

_____________________________________

May 7, 2014

Submitted February 24, 2014 Decided

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No. 05-04-0994.

Joseph E. Krakora, Public Defender, attorney

for appellant (Andrew J. Shaw, Designated

Counsel, on the brief).

Christopher J. Gramiccioni, Acting Prosecutor, Monmouth County, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief; Joshua D. Detzky, Legal Assistant, on the brief).

PER CURIAM

Defendant David Hohsfield appeals from denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

In 1997, defendant pleaded guilty pursuant to a negotiated plea agreement to second-degree sexual assault, N.J.S.A. 2C:14-2(b). The allegations were that defendant lured a child into a motor vehicle and committed sexual offenses. Defendant was sentenced to seven years in prison. He was also sentenced to community supervision for life (CSL) upon his release from prison, N.J.S.A. 2C:43-6.4, and required to register as a sex offender in accordance with Megan's Law, N.J.S.A. 2C:7-1 to -11. A condition of his CSL supervision was that he was prohibited from initiating contact with minors.

After completion of the prison sentence, defendant was charged in 2001, 2002, 2005, and 2007 with violating conditions of CSL, a fourth-degree crime in violation of N.J.S.A. 2C:43-6.4(d). All the CSL charges resulted in guilty pleas and terms of confinement, some of the prison sentences running concurrently with other sentences.

In 2008, defendant was convicted of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4, and he was sentenced to five years in prison, to be served at the Adult Diagnostic and Treatment Center for sex offenders in Avenel. While serving that prison sentence, defendant became concerned that the State could petition the court to have him civilly committed as a dangerous sex offender pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to

-27.38, when he finished his prison sentence. He filed several PCR petitions seeking to vacate his prior CSL convictions, as well as his 2008 child endangerment conviction. This appeal concerns defendant's PCR petition challenging the validity of his 2005 guilty plea and conviction in Monmouth County for violating CSL.

In March 2005, defendant was arrested in Asbury Park after an alert police officer noticed him in his van stopped alongside two girls, whom the police officer learned were eleven years old. The officer investigated and determined that defendant was a sex offender who was prohibited from having contact with children. Defendant was arrested, held in custody, and indicted. He negotiated a plea agreement with the prosecutor's office for a sentence of time served on the fourth-degree charge.

At his plea hearing on June 6, 2005, the judge conducted a brief but appropriate colloquy with defendant in accordance with Rule 3:9-2. Defendant admitted his knowledge of the CSL prohibition against initiating contact with children, admitted he approached and talked to the two girls, who were strangers to him, and also attempted to deflect some culpability by claiming he was only seeking directions to a room for rent.1 The court accepted defendant's guilty plea and subsequently sentenced him on July 29, 2005, to 136 days in the county jail, time served. The presentence investigation report prepared in 2005 indicated that defendant had a criminal history dating back to 1975 which consisted of thirty-six arrests, at least twelve municipal court convictions, and eight Superior Court convictions.

On or about November 22, 2010, defendant filed a pro se PCR petition to set aside his 2005 guilty plea and conviction. The court noted that the petition was non-conforming and had been filed more than five years after the date of defendant's conviction, but it assigned counsel to represent defendant. Counsel filed an amended petition in September 2011. Defendant alleged he had been represented ineffectively by his 2005 defense counsel because he was not warned that his CSL conviction might potentially affect a decision by the Attorney General, if defendant were to be convicted of a future sex offense, to file a petition under the SVPA to have him civilly committed. Defendant's PCR petition also included a purported expert report by a former deputy public defender, who stated her opinions about what defense counsel should have advised defendant at the time of his guilty plea and what defenses should have been investigated and raised as to the 2005 charge.

By written decision, Judge John Mullaney dismissed defendant's PCR petition. The judge noted that the petition was not timely filed within five years of his conviction, as required by Rule 3:22-12(a), and concluded that defendant had not shown excusable neglect for the late filing. The judge also reviewed defendant's contentions and concluded there was no fundamental injustice in declining to extend the time for his PCR petition because defendant had not made a prima facie showing of ineffective assistance of counsel in accordance with the standard established in Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694-95, 698 (1984), and State v. Fritz, 105 N.J. 42, 51-52 (1987). The judge concluded that plea counsel did not have a duty to advise defendant about the potential consequences of the SVPA should he commit a future sex crime and face civil commitment as a result of the future crime.

On appeal, defendant argues:

POINT I

THE PETITION SHOULD HAVE BEEN GRANTED BECAUSE THE FAILURE OF TRIAL COUNSEL TO INFORM DEFENDANT THAT HIS CONVICTION FOR VIOLATING CSL WOULD FACTOR INTO THE NEW JERSEY ATTORNEY GENERAL'S EVALUATION OF HIS CRIMINAL RECORD THAT COULD LEAD TO HIS INDETERMINATE CIVIL COMMITMENT UNDER THE SVPA SHOULD HE GO TO PRISON CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL.

POINT II

THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL FAILED TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL, WHICH PREJUDICED HIM.

A. Trial Counsel Was Ineffective by Failing

to Inform Defendant That His Conviction

for Violating CSL Would Factor into the

New Jersey Attorney General's Evaluation

of His Criminal Record That Could Lead

to His Indeterminate Civil Commitment

Under the SVPA Should He Go to Prison.

B. Trial Counsel Was Ineffective by Failing

to Pursue Three Possible Avenues of

Defense to the Violating CSL Charge

C. The Matter Should Be Remanded for an

Evidentiary Hearing on Defendant's

Claims.

POINT III

THE PETITION SHOULD NOT HAVE BEEN TIME BARRED BECAUSE DEFENDANT'S FAILURE TO FILE THE PETITION WITHIN FIVE YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE NEGLECT AND THERE IS A REASONABLE PROBABILITY THAT IF DEFENDANT'S FACTUAL ASSERTIONS ARE FOUND TO BE TRUE, ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE.

We find no merit in any of these arguments.

Pursuant to the SVPA, the State Attorney General may seek involuntary civil commitment of a person who is a "sexually violent predator." N.J.S.A. 30:4-27.28; see In Re Commitment of J.M.B., 197 N.J. 563, 571-72, cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); In re Commitment of P.Z.H., 377 N.J. Super. 458, 464-65, (App. Div. 2005). The SVPA defines a "sexually violent predator" as:

a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment.

[N.J.S.A. 30:4-27.26.]

A "sexually violent offense" is defined under the SVPA as one of several enumerated crimes listed in N.J.S.A. 30:4-27.26(a), or "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense," N.J.S.A. 30:4-27.26(b).

In State v. Bellamy, 178 N.J. 127, 136-40 (2003), the Court noted that civil commitment pursuant to the SVPA is not a direct or penal consequence of a guilty plea for a sexual offense. Nevertheless, it held that "fundamental fairness requires that the trial court inform a defendant of the possible consequences under the [SVPA]." Id. at 138. The Court directed that "[i]n the future, prior to accepting a plea to a predicate offense under the [SVPA], the trial court should ensure that a defendant understands that, as a result of his or her plea, there is a possibility of future commitment." Id. at 139-40.

The directive of Bellamy does not apply to a guilty plea on a charge that is not a predicate offense under the SVPA. A violation of CSL is not one of the listed predicate offenses under N.J.S.A. 30:4-27.26(a). Furthermore, when taking defendant's guilty plea and sentencing him in 2005, the court did not "make[] a specific finding on the record that, based on the circumstances of the case, [defendant's CSL] offense should be considered a sexually violent offense," in accordance with N.J.S.A. 30:4-27.26(b). We are not aware of any case in which violation of CSL has been found to be a predicate SVPA offense under subsection (b).

Defendant could not be civilly committed as a result of his guilty plea and conviction in 2005 for violating the conditions of CSL. He would have to commit another crime after his guilty plea and conviction to be subject to the SVPA, and that crime would have to qualify as a predicate offense under N.J.S.A. 30:4-27.26(a) or (b).

A criminal defense attorney is not required to advise a defendant about the potential consequences he might face if he commits another crime in the future. If that were a requirement of effective assistance of counsel, every plea would require extensive discussion and advice about matters that have not yet occurred and may never occur. Defendant's attorney at the time of his guilty plea did not perform deficiently because he did not advise defendant about the consequences of his committing yet another sex offense several years later.

In summary form, we conclude that the PCR petition was properly denied without an evidentiary hearing because: (1) it was barred by the five-year limitation period of Rule 3:22-12, having been filed more than five years after the judgment of conviction;2 and (2) neither Bellamy, supra, 178 N.J. 127, nor any other case law has required that a criminal defense attorney advise a defendant entering a guilty plea of potential consequences of events that have not occurred and may never occur.

Defendant's additional arguments regarding his potential defenses to the 2005 CSL charge do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm Judge Mullaney's order denying defendant's PCR petition essentially for the reasons stated in the judge's thorough written decision of February 22, 2012.

Affirmed.

1 At that time, defendant also had pending charges out of Ocean County alleging that he had spoken to girls about modeling jobs and had been found with a camera in his possession.

2 Defendant claimed that he had tried to file a pro se PCR petition in early July 2010, just before the running of the five-year deadline, but that the prison must have failed to place his petition in the mail. He had no documentation to support that claim, and Judge Mullaney correctly rejected it. Defendant had prior experience with pro se PCR petitions, and he would have been expected to follow up on any petition that he attempted to file.