STATE OF NEW JERSEY, Plaintiff-Respondent,
v. R.S.,
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant-Appellant. ______________________________________________________
Submitted March 15, 2011 - Decided April 1, 2011 Before Judges Espinosa and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-11-1422.
Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant was indicted for second-degree sexual assault, in
violation of N.J.S.A. 2C:14-2(c)(4), and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). Pursuant to a
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plea agreement, defendant pled guilty to the endangering the welfare of a child charge and the State dismissed the sexual assault charge. The trial court sentenced defendant to a five- year term of imprisonment, which he was required to serve at the Adult Diagnostic and Treatment Center in Avenel. On defendant's appeal, which we heard on an excess sentence calendar, see R. 2:9-11, we affirmed defendant's sentence as not excessive.
State v. Schemelia, A-5762-03 (Dec. 14, 2004). When defendant completed service of his sentence, he was
civilly committed on January 26, 2007 pursuant to the Sexually Violent Predator Act (SVPA). N.J.S.A. 30:4-27.24 to -27.38.
On February 27, 2007, defendant filed a petition for post- conviction relief, and on June 2, 2008, assigned counsel filed a brief in support of defendant's petition. One of the arguments presented in that petition and supporting brief was that defendant was entitled to have his guilty plea vacated because the trial court had failed to advise him of the potential for civil commitment for life upon the completion of service of his five-year sentence. Defendant also argued that his trial counsel had been ineffective in failing to advise him about the potential for civil commitment for life as a result of his guilty plea and that his appellate counsel was ineffective in failing to raise these arguments in his direct appeal.
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The trial court initially decided that "there was an obligation by either the Court or by [defense counsel] to advise [R.S.] that he possibly could have had a lifetime period . . . of civil commitment . . . as I read Bellamy," and that because defendant did not receive this advice before pleading guilty, he was entitled to retract his guilty plea. However, the court subsequently reconsidered its initial decision on its own motion and determined that defendant was not entitled to post- conviction relief. The court set forth its reasons for the denial of defendant's petition in a written opinion dated May 7, 2009, concluding that "at the time of defendant's plea and sentence, . . . neither the trial court nor defense counsel was required to inform defendant of his possible commitment under the SVPA because it was considered a collateral consequence."
On appeal from the denial of his petition, defendant presents the following arguments:
POINT I:
THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY. DEFENDANT HAD NEVER BEEN ADVISED THAT HE COULD BE SUBJECT TO "LIFETIME COMMITMENT" UNDER THE PROVISIONS OF THE SEXUALLY VIOLENT PREDATOR ACT; NOR DID HE UNDERSTAND WHAT CIVIL COMMITMENT ENTAILED.
A) DEFENDANT IS ENTITLED TO RETROACTIVE APPLICATION OF THE REQUIREMENTS OF BELLAMY SINCE DEFENDANT HAD NOT YET
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EXHAUSTED ALL AVENUES OF DIRECT REVIEW ON THE DATE BELLAMY WAS DECIDED.
B) ASSUMING, ARGUENDO, THAT DEFENDANT IS NOT ENTITLED TO RETROACTIVE APPLICATION OF THE REQUIREMENTS OF BELLAMY, THE COURT SHOULD NONETHELESS APPLY BELLAMY DUE TO FACTORS PECULIAR TO THIS DEFENDANT.
C) THE PLEA WAS NOT MADE KNOWINGLY AND VOLUNTARILY SINCE DEFENDANT WAS NEVER ADVISED THAT HE COULD BE SUBJECT TO "LIFETIME COMMITMENT." DEFENDANT MUST, THEREFORE, BE PERMITTED TO WITHDRAW HIS PLEA.
POINT II:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THE PLEA.
A) COUNSEL WAS INEFFECTIVE SINCE HE FAILED TO PROPERLY CONSULT WITH DEFENDANT CONCERNING THE PLEA AGREEMENT.
B) COUNSEL WAS INEFFECTIVE SINCE HE FAILED TO DEVELOP AN ALIBI DEFENSE.
C) COUNSEL WAS INEFFECTIVE SINCE HE FAILED TO ADEQUATELY INVESTIGATE THE CASE.
POINT III:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT IV:
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
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POINT V:
THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.
POINT VI:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE LOWER COURT FAILED TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY R. 3:22- 11. (Not Presented Below).
POINT VII:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT VIII:
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Except for defendant's arguments relating to the failure of the trial court and his trial counsel to advise him that he could be civilly committed for life under the SVPA and the failure of appellate counsel to raise these arguments on defendant's direct appeal, we reject these arguments as clearly without merit. R. 2:11-3(e)(2). However, we conclude that defendant's arguments based on the absence of any evidence in the record that he was advised a civil commitment under the SVPA could be for life have sufficient merit to warrant an evidentiary hearing at which a full record can be developed.
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The requirement that a defendant who pleads guilty to an offense that will subject him to civil commitment under the SVPA receive such advice was recognized by our Supreme Court in State v. Bellamy, 178 N.J. 127 (2003), which held that "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 and that such commitment may be for an indefinite period, up to and including lifetime commitment." Id. at 139-40 (emphasis added). Bellamy also held that the rule it announced should be applied to pending cases "in which the defendant has not yet exhausted all avenues of direct review." Id. at 143.
Defendant was sentenced only nine days before the Court decided Bellamy. Thus, even though defendant's case may not have been technically "pending" when Bellamy was decided because he had not yet filed a notice of appeal from the judgment of conviction, he "ha[d] not yet exhausted all avenues of direct review." Ibid. Therefore, defendant would have been entitled to rely upon Bellamy on his direct appeal. However, defendant seeks relief under Bellamy on a petition for post-conviction relief.
Before explaining our reasons for concluding that defendant's entitlement to such relief should be decided based
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on a full record developed at an evidentiary hearing, we note that this is not a case in which defendant received no advice concerning the possibility of civil commitment under the SVPA after completion of the sentence to be imposed under the plea agreement. One of the plea forms defendant executed before pleading guilty asked:
Do you understand that if you are confined at the Adult Diagnostic and Treatment Center or any other facility for commission of a sexually violent offense, you may upon completion of you[r] term of confinement be involuntarily committed to another facility if the court finds, after a hearing, that you are a sexually violent predator in need of involuntary civil commitment?
Defendant The trial included the same question and answer:
circled the "yes" box in response to this question. court's colloquy with defendant in taking his plea
Q. Do you understand that if you're confined at the adult diagnostic and treatment center you may upon completion of your term of confinement be involuntarily
committed to another facility if the finds after a hearing that you are a sexually violent predator in need of involuntary civil commitment?
A. Yes. However, defendant argues that the information him by the plea form and his colloquy with the not satisfy Bellamy because it did not include
Court
communicated to trial court did the fact that
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such confinement "may be for an indefinite period, up to and including lifetime commitment." 178 N.J. at 140.
This argument assumes that the only information defendant received concerning possible confinement under the SVPA was the information communicated to him by the plea form and colloquy with the trial court. Such an assumption fails to take into account the role of trial counsel in advising his or her client of the consequences of a plea. Defendant's counsel may very well have provided him with information concerning possible confinement under the SVPA in addition to the simple question and answer contained in the plea form and colloquy with the trial court. Therefore, before we rule upon defendant's arguments that the trial court did not comply with Bellamy in taking his plea and that his trial counsel was ineffective in failing to advise him of the full possible consequences of the SVPA, testimony should be adduced from defendant and his trial counsel concerning the advice given to defendant about the SVPA before his plea.
In addition, testimony should be adduced concerning the advice, if any, that defendant's appellate counsel gave him about Bellamy, his possible confinement under the SVPA, and the availability of a claim of ineffective assistance of trial counsel based on the failure to advise him of the full possible
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consequences of the SVPA. The State contends that a defendant may not refrain from raising the issue of the trial court's compliance with Bellamy on his direct appeal and then raise the issue for the first time on a petition for post-conviction relief. See R. 3:22-4; Bellamy, supra, 178 N.J. at 143. However, defendant alleges that the reason he did not raise the issue on his direct appeal is that his appellate counsel failed to inform him of its availability and that this failure constituted ineffective assistance of appellate counsel. Before ruling upon this argument, the trial court should hear testimony regarding the advice appellate counsel gave to defendant in connection with his appeal.
Finally, even if defendant was not advised of the full possible consequences of the SVPA at the time of his plea, this would not automatically entitle him to vacate his plea at this time. If a defendant is not fully informed of the consequences of his plea, he is entitled to withdraw his plea only if he shows that the information that was not communicated to him was material to his decision to accept the plea offer. Bellamy, supra, 173 N.J. at 134-35; State v. Howard, 110 N.J. 113, 123-24 (1988). Therefore, even if the trial court finds that defendant was not informed that civil confinement under the SVPA could be for an indefinite period, up to and including for life, and
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concludes that defendant is entitled to pursue this argument on his petition for post-conviction relief even though it was not raised on direct appeal, the court should also make appropriate findings concerning the effect of this omitted information upon defendant's decision to plead guilty.
Accordingly, we vacate the order denying defendant's petition and remand to the trial court for an evidentiary hearing in conformity with this opinion. The trial court is directed to make detailed findings of fact and conclusions of law based on the evidence presented at that hearing. The remand shall be completed within sixty days of the filing of this opinion. Jurisdiction is retained.
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