Opinion
DOCKET NO. A-1287-13T3
03-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. F.G., JR., Defendant-Appellant.
Robert A. Warmington, attorney for appellant. Francis A. Koch, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 95-06-0117. Robert A. Warmington, attorney for appellant. Francis A. Koch, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant F.G., Jr. appeals from the October 3, 2013 order of the Law Division denying his petition for post-conviction relief (PCR) without a hearing. Because we are persuaded that a prima facie claim for relief was shown, we remand for an evidentiary hearing
I.
This appeal arises out of allegations that in 1994, when defendant was sixteen, he touched his then fourteen-year-old sister's breasts, buttocks, and vagina outside of her clothing on several occasions. During this period, defendant also allegedly touched a friend of his sister's in the same fashion.
A Sussex County grand jury returned an indictment charging defendant with third- and fourth-degree criminal sexual conduct N.J.S.A. 2C:14-3(a) and (b), and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On January 16, 1996, defendant pled guilty pursuant to a plea agreement to two counts of fourth-degree criminal sexual contact and two counts of third-degree endangering. Although Megan's Law had been in effect for over one year, defendant was not advised of either the registration requirements, N.J.S.A. 2C:7-1 to -5, or community notification provisions, N.J.S.A. 2C:7-6 to -11, that the law imposed as a result of his conviction. The plea agreement made no mention of these requirements and there is no reference to either in the judgment of conviction (JOC).
"Megan's Law" refers to a group of eleven bills enacted by the Legislature in October 1994 in memory of a seven-year-old girl killed by a convicted sexual offender. In re Registrant, C.A., 146 N.J. 71, 79 ( 1996).
Section 11 was repealed effective January 17, 2014. L. 2013, c. 253.
On February 9, 1996, defendant was sentenced, consistent with the terms of the plea agreement, to concurrent four-year terms of probation on each count, outpatient therapy for a minimum of one year, and ordered to have no contact with his sister. One week later, defendant was asked to complete a Sex Offender Registration Form and provide information as to his offense, victims, residence, employment, and psychological counseling. The form indicates that it was mandated by N.J.S.A. 2C:7-1.
On June 8, 2001, an order was entered determining the scope of notification for defendant pursuant to N.J.S.A. 2C:7-6 to -11. On July 29, 2002, an order was entered designating defendant as a Tier Two sex offender.
A tier classification hearing determines the scope of community notification of information such as a sex offender's name and home and work addresses by assigning the offender to one of three tiers. Doe v. Poritz, 142 N.J. 1, 23-25 (1995).
Defendant did not appeal his sentence or any of the subsequent orders determining his tier classification and scope of notification. However, in 2010, defendant moved to withdraw his plea. Before the motion was decided, the parties entered into a consent order on November 5, 2010, adjourning the motion to permit defendant to supplement the record. The consent order also conditionally vacated both of defendant's endangering convictions and amended the JOC "to eliminate . . . his requirement to be subject to a special sentence of community supervision for life [CSL.]" Although the CSL requirements were removed, defendant was still subject to the Megan's Law reporting requirements.
In the event defendant succeeded in withdrawing his plea, the State would be permitted to retry him on the counts contained in the indictment, including the two endangering counts.
On November 3, 2011, defendant again moved to withdraw his plea. During oral argument, defendant's counsel indicated that defendant never would have pled guilty if he had known of the Megan's Law restrictions his sentence mandated. The judge rejected this argument and denied the motion.
Defendant then filed the instant petition for PCR, claiming ineffective assistance of his plea counsel for failing to inform him of the Megan's Law restrictions. Defendant claimed that his understanding of the plea agreement was that he would simply be placed on probation. Defendant also moved for withdrawal based on the newly discovered evidence that the two victims had recanted. During oral argument, defendant's counsel explained that defendant suffered from mental health retardation since birth and was under the care of the Division of Developmental Disabilities (DDD). Because of the Megan's Law restrictions, the availability of residential housing for defendant was severely limited.
The judge entered an order on June 13, 2013 denying that portion of the petition seeking relief based on the recantation of the victims but permitted defendant's counsel to submit additional proofs "regarding the defendant's living options, circumstances and conditions of same if he remains on Megan's Law and if he is removed from Megan's Law as to his DDD placement[.]"
After additional submissions and oral argument, the judge entered an order denying relief on October 3, 2013. Relying on Doe v. Poritz, 142 N.J. 1 (1995), the judge concluded that the Megan's Law reporting requirements were "mandatory by its terms, given the conviction."
On appeal, defendant raised three points:
POINT I
THE DEFENDANT HAS ESTABLISHED INEFFECTIVE ASSISTANCE OF COUNSEL AND HIS PETITION TO WITHDRAW HIS PLEA SHOULD BE GRANTED. ALTERNATIVELY, HE HAS ESTABLISHED A PRIMA FACIE CLAIM AND SHOULD BE GRANTED AN EVIDENTIARY HEARING.
POINT II
THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS NOT TIME-BARRED BY RULE 3:22-12.
POINT III
LEGITIMATE EXPECTATIONS OF FINALITY AND AVOIDANCE OF INJUSTICE DICTATE THAT THE DEFENDANT NOT BE SUBJECT TO MEGAN'S LAW REGISTRATION.
II.
To show ineffective assistance of trial or appellate counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted in State v. Fritz, 105 N.J. 42, 49-50 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Ibid. In the context of a guilty plea, "a defendant must prove 'that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial.'" State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)), cert. denied, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
A court need not grant an evidentiary hearing unless a defendant has presented a prima facie case in support of PCR relief. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts in the light most favorable to defendant. Ibid.
If the PCR court has not held an evidentiary hearing, our review is de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
We begin by addressing the State's claim that defendant's petition must be denied as untimely. Rule 3:22-12(a)(1) specifies that a PCR petition must be filed within five years of the date of the entry of the JOC that is being challenged. If the petition is filed after more than five years have elapsed, the defendant is required to demonstrate "excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Ibid.
It is not clear from the record before us that the State ever challenged the PCR petition as time-barred before the motion judge. Normally we would not consider an issue not properly presented to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). However, as we are remanding, and the timeliness of defendant's petition may be challenged, we provide the following observations.
In responding to the motion judge's question why defendant should not receive a hearing on the recantation of the victims, the assistant prosecutor stated that the recantation issue was not a proper claim under PCR. Then, he added, "[defendant's] time for post-conviction relief is over." We do not consider this remark made in passing to have challenged the timeliness of defendant's PCR petition.
After defendant's guilty plea, the first JOC was entered on February 9, 1996. Under Rule 3:22-12's five-year limit, defendant had until February 9, 2001 to file his PCR petition with respect to that conviction. However, the State agreed to vacate the two endangering convictions, and the order of November 5, 2010 amended the 1996 JOC reflecting the changes. While the new JOC eliminated the CSL requirement, defendant's primary challenge is to the registration requirements, which remained a part of his sentence. When defendant filed his petition for PCR in January 2013, it was within the five-year window of the amended JOC he was challenging.
We note that the Rule has been amended and restructured several times since defendant's 1996 plea and sentence, although the general five-year limitation, subject to certain exceptions, has remained in force. See Pressler and Verniero, Current N.J. Court Rules, cmts. 1-2 on R. 3:23-1 (2015).
It is not clear that a second JOC was actually filed. For our purposes, we treat the November 5, 2010 order as the amended JOC.
Our copy of the PCR petition is not time-stamped. Defendant signed the petition on January 15, 2013, and his counsel mailed it to the court on January 26, 2013.
While the motion judge permitted defendant to supplement the record with additional proofs as to the effect of the Megan's Law registration requirements on his residential placement with DDD, he failed to address his ineffective assistance claims, specifically his claim that had he been advised of the Megan's Law restrictions, he would not have pled guilty.
It is not disputed that defendant was not told of either the CSL or the registration requirements under Megan's Law. To the contrary, the record supports defendant's claim that he understood his sentence would be limited to probation.
During defendant's plea allocution, his counsel questioned him on what the State agreed to:
Q: You . . . and I have reviewed this matter and I've tried to answer all your questions to the best of my ability, correct?The questioning could well have led defendant to believe that, after finishing the one-year minimum period of counseling, his sentence would be completed:
A: Correct.
Q: And I had indicated to you, before we came into [c]ourt, that if you had wanted to plead guilty, in other words tell the [j]udge that you did certain things that make you guilty of committing certain crimes, namely the criminal sexual contact charges and the endangering the welfare charges, the State would agree to recommend that you receive a term of probation with the condition that you get long term counseling. Did you understand what I just said to you?
A: Yes, I do.
. . . .
Q: And you understand that the State is making a certain promise, they're promising to recommend at the time of your sentencing, that you receive probation with no further or any jail time, is that your understanding?
A: Yes.
Q: Okay. Now, . . . you understand that the [p]rosecutor is promising you that at the time of your sentencing that he is going to ask [the sentencing judge] to place you on probation with no jail time, you understand that so far?
A: Yes
Q: And that as a condition of your probation, you have to get long-term counseling, at least one year, do you understand that?
A: Yes.
Q: But you also understand that the matter isn't over with until you've successfully completed your probation, correct?
The State argues that, at the time of defendant's plea, Megan's Law was "newly enacted," and judges and attorneys "were unsure as to how the provisions would all interrelate and develop in practice." We note that Megan's Law was effective October 31, 1994 and had been in place for over one year at the time of defendant's sentence. Moreover, one week after defendant's sentence, he was asked to sign a Sex Offender Registration Form, which provided:
This standardized form had been in use since at least January 4, 1995, when it was revised.
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In accordance with the provisions of N.J.S.A. 2C:7-1, you are required to register with the local police department every time you relocate to an address that is different from the one listed on your previous registration. Failure to comply with the registration requirements will subject you to penalties as set forth in the statute.Even though Megan's Law was a relatively new statute in 1996, it is clear that a registration protocol was in place at the time of defendant's plea and sentence.
A guilty plea may be accepted only if the defendant understands the consequences of the plea. R. 3:9-2. "[A] guilty plea entered without sufficient understanding of the penal consequences is ordinarily invalid. Even misinformation about a collateral consequence may vitiate a guilty plea if the consequence is a material element of the plea." State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003). "Although a court is not responsible for informing a defendant of all consequences flowing from a guilty plea, at a minimum the court must ensure that the defendant is made fully aware of those consequences that are 'direct' or 'penal.'" State v. Johnson, 182 N.J. 232, 236 (2005).
The motion judge relied on Poritz, supra, in concluding that the failure to advise defendant of the Megan's Law registration requirements was not "material." In Poritz, a convicted sex offender who had successfully completed treatment at the Adult Diagnostic and Treatment Center at Avenel, was paroled, successfully completed parole, and had been living and working in the community, challenged the constitutionality of the registration and community notification provisions of Megan's Law. Poritz, supra, 142 N.J. at 26. The Court held that those requirements were remedial and not punitive. Id. at 12-13. The inquiry does not end here, however.
In analyzing whether a defendant must be advised of a particular consequence of a plea, it is necessary to determine whether a consequence is direct or penal. State v. Bellamy, 178 N.J. 127, 139 (2003). In Bellamy, the Court addressed civil commitment and held "when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence." Ibid.
Although defendant is not facing civil commitment, he is experiencing a continuing consequence of the registration requirements that adversely affect his ability to obtain residential accommodations through DDD. While this restriction cannot be fairly categorized as a "penal consequence," courts should not be hamstrung by strict nominal classifications when, as here, the impact upon a defendant is severe and permanent. As Chief Justice Wilentz observed in his dissent in State v. Heitzman, "[i]t matters little if the consequences are called indirect or collateral when in fact their impact is devastating." State v. Heitzman, 107 N.J. 603, 606 (1987) (Wilentz, C.J., dissenting).
The State does not dispute that defendant was never advised of the Megan's Law consequences of his plea. Nor does it contest that defendant continues to experience complications in obtaining residential services through DDD as a direct result of the Megan's Law reporting requirements. We are satisfied that defendant's contention, that if he had been fully informed as to the consequences he would not have entered a guilty plea, presents a prima facie PCR claim. State v. Preciose, 129 N.J. 451, 462-64 (1992).
The order denying defendant's petition for PCR is vacated and the matter is remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION