STATE
v.
R.S. ,
DOCKET NO. A-0161-09T4
______________________________________________________
Submitted March 15, 2011 - Decided
Before Judges Espinosa and Skillman.
On appeal from Superior Court of New Jersey,
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
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
April 1, 2011
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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 fiveyear
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 postconviction
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.
3 A-0161-09T4
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 postconviction
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.
5 A-0161-09T4
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.
6 A-0161-09T4
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 circled the "yes" box in response to this question.
The trial court's colloquy with defendant in taking his plea
included the same question and answer:
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 Court
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 communicated to
him by the plea form and his colloquy with the trial court did
not satisfy Bellamy because it did not include 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.
