Opinion
DOCKET NO. A-0161-09T4
07-16-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.S., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Kathleen E. Dohn, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Skillman.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-11-1422.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Kathleen E. Dohn, of counsel and on the brief). PER CURIAM
This appeal returns following a remand for an evidentiary hearing on defendant's petition for post-conviction relief. The trial court has now found that defendant was not aware that his guilty plea to endangering the welfare of a child, N.J.S.A. 2C:24-4a, exposed him to civil commitment for an indefinite period that could be a lifetime pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Because defendant is entitled to the remedy mandated in State v. Bellamy, the denial of post-conviction relief is reversed and the matter is remanded. 178 N.J. 127 (2003). If defendant still wishes to vacate his plea subject to reinstatement of the initial charges, the trial court shall enter an order granting that relief.
Defendant R.S. entered his guilty plea on October 11, 2002, and on December 2, 2003, he was sentenced to a five-year term of imprisonment to be served at the Adult Diagnostic and Treatment Center. On his direct appeal, defendant challenged only his sentence; a panel of this court affirmed after hearing oral argument in accordance with Rule 2:9-11 on December 14, 2004.
As a consequence of his conviction, defendant was eligible for civil commitment pursuant to the SVPA upon completion of his sentence. In fact, he was civilly committed as a sexually violent predator on January 26, 2007.
Defendant filed a petition for post-conviction relief on February 27, 2007, arguing that his guilty plea was "not knowing and voluntary" because he was not advised that as a consequence of his plea he could be civilly committed for an indefinite period as long as his lifetime. The trial court determined that defendant was not entitled to relief because he pled guilty prior to December 11, 2003, the date the Supreme Court held, in Bellamy, that a defendant pleading guilty to a crime qualifying for SVPA commitment must be told that one consequence of the plea is civil commitment "for an indefinite period up to life." 178 N.J. at 139-40.
Although Bellamy was issued more than a year after defendant's plea and nine days after defendant was sentenced, he filed his notice of appeal challenging nothing other than his sentence after that decision. Thus, his case is properly deemed to be one within the scope of the pipeline retroactivity Bellamy was given. 178 N.J. at 140. When we heard oral argument on direct appeal, a year had passed since Bellamy was decided, but defense counsel did not present a Bellamy argument.
On defendant's appeal from the denial of his petition for post-conviction relief, we determined that defendant was warned of the possibility for SVPA commitment by the plea form he signed and by the judge who took his plea. But we found no evidence showing that defendant was told that the civil commitment could be "for an indefinite period up to and including lifetime commitment," as Bellamy requires. State v. R.S., No. A-0161-09 (App. Div. Apr. 1, 2011) (slip op. at 7-8). Accordingly, we remanded for an evidentiary hearing to determine what other advice, if any, trial counsel and appellate counsel gave defendant on SVPA commitment. We further directed that court to provide detailed findings and legal conclusions within sixty days.
Defendant testified on remand. He denied being advised of the possible duration of an SVPA commitment and said he was not guilty and would have gone to trial if he knew he could be civilly committed for life. He further testified that his attorney went over the question on the plea form concerning the SVPA very quickly and told him it did not apply to him. Thus, by his account, when he pled guilty he thought he would serve his sentence and go home. Consequently, he succumbed to pressure from his attorney and his wife to accept the plea.
The attorney who represented defendant in connection with his plea recalled defendant asserting his innocence but did not recall pressuring him to take the plea. He denied telling defendant that SVPA commitment would not apply to him and did not recall directing defendant to circle "yes" on the form to indicate he understood. The attorney was asked if he failed to spend time explaining the SVPA commitment question on the plea form, which did not describe its indefinite nature, because no other attorneys were providing that information at the time. The defense attorney gave this response:
A: Well, I spent some time but when you say any time I did not spend anything -- I did not spend a considerable period of time with him on it. I explained what a civil commitment was and the fact that it could happen to him and I don't think, I don't recall if he had questions about that but those were the two areas that I talked about, that he could be civilly committed following even after he finished his sentence.
With respect to the assistance provided by appellate counsel, defendant testified that he tried to reach the attorney representing him on appeal but was not successful. Defendant's appellate attorney confirmed that the only argument he raised on direct appeal was that defendant's sentence was excessive. He admitted that he did not speak to defendant prior to the oral argument on appeal, and he acknowledged that defendant could have tried to reach him and been unsuccessful.
While the attorney did not have a specific recollection of defendant's appeal, he said he would have been aware of Bellamy, but based on his understanding of the opinion at that time, he would not have raised a Bellamy claim on that appeal. Before he read this court's decision remanding defendant's case, the attorney thought Bellamy had been satisfied because the prospect of SVPA commitment was covered on the plea form and addressed by the judge at the time of the plea. He had not recognized the importance of specific advice on the indefinite and potentially permanent nature of SVPA commitment. Consequently, he did not raise the claim on appeal and limited his arguments to other points that he believed could warrant a reduction of his client's sentence.
The judge who conducted the hearing on remand found that defendant was made aware that SVPA commitment was a possibility, but she also found that defendant was not made aware of the possibility that the commitment could last for the duration of his life. Nevertheless, based on her assessment of the State's evidence and the fact that defendant's plea agreement called for the dismissal of a charge for a more serious crime with a greater minimum sentence, the judge further found that the prospect of civil commitment for life would not have led defendant to reject the favorable plea agreement. She reasoned that "there would have been a certain irrationality on the part of [defendant] to have rejected the plea offer in favor of a trial he had little hope of winning and which would have subjected him to civil commitment for life in any event if he were convicted."
Based on the judge's understanding of the direction we provided for the remand, she did not make a ruling on the merits of defendant's petition.
Rule 3:22-3 provides that a petition for post-conviction relief "is not a substitute for appeal" and Rule 3:22-4(a) generally bars relief based on an issue that was not and could have been raised on direct appeal. That procedural bar does not apply, however, if the court finds that its enforcement "to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice." R. 3:22-4(a)(2). That exception applies in this case, without regard to whether the attorneys who represented defendant at the time of his plea provided effective assistance within the meaning of that term as defined by the Supreme Courts of the United States and this State. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984); State v. Jack, 144 N.J. 240, 249 (1996).
In Bellamy, the Court reasoned that "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." 178 N.J. at 139. The Court further explained that "failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense under the [SVPA] is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea." Ibid. Accordingly, the Court issued a clear and precise mandate:
In the future, prior to accepting a plea to a predicate offense under the Act, 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).]
The remedy the Court provided for violation of that mandate is equally clear: "[T]he appropriate remedy is to remand to permit defendant to move to withdraw his plea. If the trial court is satisfied that defendant did not understand the consequences of his plea, it shall permit defendant to withdraw his plea 'in the interest of justice to correct a manifest injustice,' R. 3:21-1, and shall reinstate the charges." Id. at 140. Thus, the Court expressly directed the trial court to grant the motion to vacate on remand if the defendant did not understand the consequences. The Court did not direct the trial court to further determine whether the defendant made the additional showing generally required for such relief — that if defendant had knowledge of a consequence that he lacked at the time of his plea, that knowledge would "have affected defendant's decision to plead." Id. at 135.
In short, Bellamy's mandate and the simple showing the Court required to invoke its remedy rests on the Court's conclusion that the SVPA's potential for lifetime commitment is so significant that a plea made without knowledge of that potential is not, as a matter of law, voluntary or knowing and, accordingly, must be vacated as a matter of fundamental fairness. For that reason, no additional showing beyond a lack of knowledge is required.
The decision in Bellamy does not leave room for confusion on this point. In that case, the defendant raised the issue for the first time on appeal. 178 N.J. at 133. Consequently, there was no record that could establish that defendant would not have pled guilty if he had been aware of the possibility of SVPA commitment.
In this case, defendant would have been entitled to Bellamy's remedy if appellate counsel had raised the Bellamy issue on appeal. In Bellamy, the Court directed that its holding "be applied in [that] case and those cases pending in which the defendant has not yet exhausted all avenues of direct review . . . ." Id. at 140-41. Presumably, this court would have remanded with the same direction given in Bellamy, because his appeal was before us on direct review.
In this circumstance, application of Rule 3:22-4's procedural bar to preclude defendant's claim would result in a fundamental injustice. The trial judge has now found that defendant was not aware that he could be civilly committed for an indefinite period ending with his death. That finding warrants relief under Bellamy even though the judge also discredited defendant's testimony about the importance of that information to his decision to plead guilty and concluded that it would not have made a difference. Because the judge was satisfied that defendant did not understand that his guilty plea would qualify him for a lifetime of civil commitment, he was entitled to the remedy the Court gave the defendant in Bellamy.
The reasoning underlying the trial court's determination that defendant's decision to plead guilty would not have been affected is flawed. Where a potential commitment for life following service of sentence is equally available after plea or trial, comparison of the duration of the sentence offered in the plea agreement and defendant's exposure if he goes to trial has minimal significance — either way, the defendant faces a risk of confinement for life. In this context, there is nothing inherently irrational about the decision to risk conviction at trial and a longer sentence in the hope of an acquittal based on reasonable doubt, which would allow a defendant to avoid both the sentence and the risk of lifetime commitment.
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It would be fundamentally unfair to deny the remedy in this case because the issue was not raised on an appeal argued a year after Bellamy was decided. Defendant has served his sentence and already has been civilly committed for a period exceeding his confinement on the sentence. Accordingly, we remand. If defendant still wishes to vacate his plea and proceed to trial on the initial charges, the judge shall enter an order granting that relief.
There is an alternative basis for concluding that defendant is entitled to the relief we have ordered. The record supports a determination that reasonably competent appellate counsel, aware of Bellamy, would have understood the significance of an explanation of the risk of lifetime commitment and contacted the client to determine whether he wished to seek a remand to show that he did not understand that consequence. That was not done, and defendant was consequently prejudiced by loss of the opportunity to obtain the relief on direct appeal, to which he was entitled, because he had not received the information Bellamy required and, as the trial court has found, did not understand that he faced a civil commitment for an indefinite period. Jack, supra, 144 N.J. at 249.
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION