STATE OF NEW JERSEY v. W.M.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2375-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

W.M.,

        Defendant-Appellant.

_______________________________

              Submitted January 25, 2018 – Decided March 19, 2018

              Before Judges Simonelli and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Accusation No.
              97-11-3281.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Monique Moyse, Designated
              Counsel, on the brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney   for   respondent   (Maura    Murphy
              Sullivan, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     Defendant appeals from the December 9, 2016 Law Division

order   denying    his    petition      for    post-conviction    relief     (PCR)

without an evidentiary hearing.              We affirm.

     On November 12, 1997, defendant entered a negotiated guilty

plea to second-degree sexual assault, 
N.J.S.A. 2C:14-2(c), and

admitted    touching       an     eleven-year-old's       penis    for      sexual

gratification when he (defendant) was eighteen years old.                         On

February 20, 1998, defendant was sentenced in accordance with the

plea agreement to seven years' imprisonment to be served at the

Adult Diagnostic and Treatment Center pursuant to 
N.J.S.A. 2C:47-

3.   Defendant was also sentenced to community supervision for

life, 
N.J.S.A. 2C:43-6.4, and ordered to comply with Megan's Law,


N.J.S.A. 2C:7-1 to -23.          Defendant did not appeal his conviction

or sentence.      In 2003, after serving his sentence, defendant was

civilly committed under the Sexually Violent Predator Act (SVPA),


N.J.S.A. 30:4-27.24 to -27.38, and currently remains confined.

     On    December      16,    2015,   defendant    filed   an   untimely      PCR

petition, claiming he was deprived of effective assistance of

counsel at the time of his plea because his attorney never informed

him that his conviction could subject him to indefinite civil

commitment under the SVPA.         As a result, defendant argued, "he did

not understand the nature of the consequences of the plea."                  After

defendant was assigned counsel, defendant submitted a supplemental

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certification, stating that "[i]f [he] had been aware of the

possibility of being civilly committed, for possibly the rest of

[his] life, . . . [he] would have opted to reject the plea offer

and go to trial."          Additionally, defendant certified that his

attorney "never explained [his] right to file for post-conviction

relief []or related time limits," and "[he] only became aware of

[his] PCR rights in the summer of 2015" through another inmate.

In a supporting brief filed by assigned counsel, defendant argued

"[he] should be permitted to withdraw his guilty plea."                  He also

argued that his attorney's and the court's failure to inform him

of his PCR rights constituted "truly exceptional circumstances

compelling a relaxation of the five[-]year time bar imposed by

[Rule] 3:22-12."

       On December 9, 2016, following oral argument, the PCR court

rejected       defendant's     arguments,      finding       that    defendant's

application      was    procedurally       barred   by      Rule    3:22-12    and

substantively barred by State v. J.K., 
407 N.J. Super. 15 (App.

Div. 2009).          As to the procedural bar, the judge noted that

defendant filed his petition seventeen years after his conviction

and explained that "ignorance or mistake of law [was] simply not

a basis . . . to excuse the five-year limitation.                   Case law is

very   clear    on    that."   Moreover,     the    court    pointed   out    that

defendant did not claim that there was "a serious question about

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his guilt."   To the contrary, "[d]efendant confessed . . . to the

crime."

     As to the substantive bar, the court noted that the SVPA

"wasn't passed until well after [defendant] was sentenced.         It

would be an unfair burden to place on any lawyer to know what was

going to happen in the future."   Accordingly, the court concluded

defendant failed to establish a prima facie case of ineffective

assistance of counsel under Strickland v. Washington, 
466 U.S. 668

(1984), to warrant an evidentiary hearing or PCR.   A memorializing

order was entered on December 9, 2016, and this appeal followed.

     On appeal, defendant raises the following points for our

consideration:

          POINT ONE

          [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY
          HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY
          RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR
          FAILING TO ADVISE HIM ADEQUATELY OF THE CIVIL
          COMMITMENT CONSEQUENCES OF HIS PLEA.

          POINT TWO

          THE   PCR   COURT   ERRONEOUSLY   RULED   THAT
          [DEFENDANT'S]   PETITION   WAS   TIME[-]BARRED
          BECAUSE ANY DELAY IN FILING THE PETITION WAS
          DUE TO EXCUSABLE NEGLECT[,] AND THERE IS A
          REASONABLE           PROBABILITY          THAT
          IF . . . DEFENDANT'S FACTUAL ASSERTIONS WERE
          FOUND TO BE TRUE, ENFORCEMENT OF THE TIME BAR
          WOULD RESULT IN A FUNDAMENTAL INJUSTICE.




                                  4                         A-2375-16T4
       When a PCR petition is premised on ineffective assistance of

counsel, New Jersey courts apply the two—part Strickland/Fritz1

framework:

             First, the defendant must show that counsel's
             performance was deficient.      This requires
             showing that counsel made errors so serious
             that counsel was not functioning as the
             "counsel" guaranteed the defendant by the
             Sixth Amendment. Second, the defendant must
             show that the deficient performance prejudiced
             the defense . . . . Unless a defendant makes
             both showings, it cannot be said that the
             conviction . . . resulted from a breakdown in
             the adversary process that renders the result
             unreliable.

             [Strickland, 
466 U.S.  at 687.]

       The second prong of this test is satisfied by a showing that

"but   for   counsel's   unprofessional   errors,   the   result   of   the

proceeding would have been different."        Id. at 694.    In the case

of a defendant who enters a guilty plea, he or she must demonstrate

a reasonable probability that, but for counsel's errors, no plea

would have been entered, and he or she "would have insisted on

going to trial."     Hill v. Lockhart, 
474 U.S. 52, 59 (1985).

       A defendant who makes a prima facie showing of ineffective

assistance of counsel requiring PCR, that is, "demonstrate[s] a

reasonable likelihood that his or her claim will ultimately succeed



1
   State v. Fritz, 
105 N.J. 42, 67 (1987) (adopting the standard
in Strickland, 
466 U.S. at 687-88).

                                   5                               A-2375-16T4
on the merits," is generally entitled to an evidentiary hearing.

State v. Marshall, 
148 N.J. 89, 158 (1997). Absent such a showing,

however, no evidentiary hearing is required. State v. Cummings,


321 N.J. Super. 154, 170 (App. Div. 1999); see also R. 3:22-10(b).

We review a judge's decision denying a PCR petition without an

evidentiary hearing for abuse of discretion.      State v. Preciose,


129 N.J. 451, 462 (1992).   Where, as in this case, "no evidentiary

hearing has been held, we 'may exercise de novo review over the

factual inferences drawn from the documentary record by the [PCR

judge].'"   State v. Reevey, 
417 N.J. Super. 134, 146-47 (App. Div.

2010) (alteration in original) (emphasis omitted) (quoting State

v. Harris, 
181 N.J. 391, 421 (2004)).

     Here, we agree with the PCR court that J.K. is dispositive

and warrants rejection of defendant's petition.    In J.K., 
407 N.J.

Super. at 19-20, we considered a PCR application by a defendant

who was civilly committed under the SVPA after serving his sentence

for a conviction he received approximately four years before the

Act became effective.   Relying on our Supreme Court's holding in

State v. Bellamy, 
178 N.J. 127 (2003), we rejected defendant's

application.   J.K., 
407 N.J. at 19-21.   Bellamy allowed defendants

who pled guilty to SVPA-eligible charges without being advised of

the potential SVPA consequences to withdraw their guilty pleas but



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limited the application of the new rule to pipeline retroactivity

only.      Id. at 140-43.

      In    J.K.,    as   here,   the    defendant    contended      he   received

ineffective assistance of counsel because his attorney had not

informed     him    of    the   possibility    that   the    SVPA    might       apply

retroactively to his case.           Id. at 18.       However, as here, "[a]t

the time [the] defendant pled guilty, he was fully apprised of all

relevant consequences of his plea that were known at the time."

Id.   at    21.      We   determined    that   "[w]ith      knowledge     of     those

consequences, his plea was knowing and voluntary based upon the

law as it then existed," and his attorney could "hardly be found

deficient for failing to advise [the] defendant of a potential

consequence that did not then exist."                  Ibid.        Therefore, we

concluded defendant could not meet the first prong of Strickland,

requiring that counsel's performance fall "below an objective

standard of reasonableness."            Ibid. (quoting Strickland, 
466 U.S.

at 687-88).        The same result obtains here.2

      Affirmed.




2
   Here, as in       J.K., the judge also found defendant's petition
time-barred.         See R. 3:22-12.     However, "[b]ecause of our
disposition on       the substantive issue[], we do not address the
procedural time      bar." J.K., 
407 N.J. Super. at 19 n.2.

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