Opinion
DOCKET NO. A-1653-08T3
08-09-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE M. GONZALEZ, Defendant-Appellant.
Yvonne Smith Segars, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Mark A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-07-0742.
Yvonne Smith Segars, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Mark A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the August 15, 2008 order denying his petition for post-conviction relief (PCR). We affirm.
In 1999, defendant was indicted for second-degree attempted sexual assault, N.J.S.A. 2C:14-2(c)(1) and 2C:5-1; and fourth- degree criminal sexual contact, N.J.S.A. 2C:14-3(b). On September 13, 1999, pursuant to a negotiated plea agreement, he pled guilty to attempted sexual assault; the State agreed to recommend a flat five-year sentence. Both counsel and the judge expressed uncertainty as to whether the No Early Release Act, N.J.S.A. 2C:43-7.2(a) (NERA), would apply to defendant's sentence; therefore, the judge ruled, with both parties' consent, that he would take defendant's plea and if it were subsequently determined that NERA applied, defendant would be permitted to retract his plea.
Defendant acknowledged that he "speak[s] and understand[s] English." He gave a factual basis in which he admitted that he attempted to force the victim to put his penis in her mouth. Defendant also acknowledged that he signed the supplemental plea form relating to the requirements imposed by Megan's Law, N.J.S.A. 2C:7-1 to -23, and that he discussed with his attorney "all the questions and answers" on that form before signing it; he stated that he was satisfied with the services of his attorney.
At a hearing on May 5, 2000, the judge and counsel concluded that NERA did apply to second-degree attempted sexual assault. Therefore, with the State's consent defendant was permitted to retract his guilty plea and the matter was scheduled for trial.
On September 28, 2000, in a hearing before a different judge, counsel and the judge concurred that NERA did not apply. Therefore, defendant moved to reinstate his plea, which the judge granted. All parties agreed to proceed based upon the plea form defendant had executed on September 13, 1999. Both the judge and defense counsel questioned defendant. The following colloquy ensued with counsel:
[DEFENSE COUNSEL]: Do you understand that when you entered the guilty plea to this charge back in September of 1999, you were also advised of the applicability of the provisions of the Megan's Law statute, correct?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And you understand that that requires you to register?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And supervision for life, community supervision for life, do you understand that?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: . . . [T]hat was explained to you back in September of '99, correct?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: And again, you do understand that . . . will be a part of this sentence, correct?
[DEFENDANT]: It has to be?
[DEFENSE COUNSEL]: Yes, sir, it's the law.
[DEFENDANT]: There's no way --
[DEFENSE COUNSEL]: That's the law. That's part of the plea to this charge. Do you understand that?
[DEFENDANT]: Okay.
The judge then immediately picked up on this line of questioning with the following colloquy:
THE COURT: Mr. Gonzalez, that's the law. Whether you plead guilty or are found guilty, it's not a discretionary thing that I have as a judge.
[DEFENSE COUNSEL]: It's mandatory.
THE COURT: Certain things, when I sentence someone, . . . I do in my discretion, what I feel is proper or right under the circumstances, and there are other areas where I have no discretion. . . .
. . . .
But with Megan's [L]aw, I have no discretion. You have to register as a sex offender when released from jail and then you are subject to community supervision for life. They will put you in a certain tier. And again, you can always contest that tier. You know, to see exactly what your element of . . . risk in the community is for risk of reoffending.
So Mr. Gonzalez, I take it you always wanted to plead guilty and you still want to plead today.
[DEFENDANT]: Yes, sir.
THE COURT: Anything you don't understand about what's involved here? Any questions?
[DEFENDANT]: No.
The judge thereupon found that defendant entered his guilty plea knowingly and voluntarily with "the advice of competent counsel" and that he understood "the nature of the plea" as well as "his obligations under Megan's [L]aw." He proceeded to sentence defendant, in accordance with the plea agreement, to a term of five years imprisonment.
Defendant was released from prison in 2003. Sometime in 2005, he was arrested for violating the conditions of community supervision and served 190 days in the county jail.
Defendant filed his PCR petition on April 13, 2007, alleging that the consequences of community supervision for life had not been explained to him at the time of his plea. Following the assignment of counsel, defendant filed a supplemental certification, claiming: (1) his attorney "did not explain all of the restrictions . . . following release from prison due to the application of Megan[']s Law," and had he known about the consequence of community supervision for life he would not have pled guilty; and (2) as a native of Puerto Rico, "[a]t the time of [his] guilty plea [he] spoke only a little English and understood less."
A hearing was held on August 15, 2008, before Judge Ronald B. Sokalski, who had also taken defendant's plea and sentenced him in September 2000. Defendant was present and testified that his attorney never explained that he would be on parole for fifteen years, that his ability to travel would be restricted and that he would have to report to parole and comply with "a lot of rules and regulations . . . that [he] did not understand at that time."
Judge Sokalski reviewed the history of defendant's case, noting that defendant had told the judge who took his guilty plea that he could read and write English and he appeared without the aid of an interpreter at all proceedings. Reviewing the transcript of September 28, 2000, the judge noted the colloquies both he and defense counsel had with defendant about the consequences of Megan's Law.
The judge then stated that defendant's petition was untimely under Rule 3:22-12, as it had not been filed within five years of his sentence date. Noting that defendant had been charged with violating the conditions of community supervision for life in 2005 and that he still did not file his PCR petition at that time, the judge found no "justification for the delay." Notwithstanding this finding with respect to the time bar, Judge Sokalski concluded that defendant's claims failed on the merits, based upon the judge's review of the record.
Defendant then proffered an explanation for the delay, stating that upon his release from prison in 2003 he contacted the Office of the Public Defender in an effort to file an appeal; he was assigned an attorney who told him to "leave this alone." He complained that no one had explained to him that community supervision for life meant he would be on parole for fifteen years.
The judge found that defendant had not been "misinformed. [He was] advised that [he] would be sentenced to community supervision for life[,]" and that no one could tell him how long he would be subject to that condition until he was actually released from prison. In addition to addressing the merits of defendant's claim, the judge again found that his petition was time-barred and that defendant's verbal explanation for the delay was not mentioned, let alone documented, in his petition.
On appeal, defendant presents the following contentions for our consideration:
POINT ONE
THE TIME BAR OF R. 3:22-12 SHOULD NOT HAVE BEEN APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
POINT TWO
THE PROCEDURAL BAR OF R. 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
POINT THREE
THE FAILURE OF TRIAL COUNSEL TO EXPLAIN THE CONSEQUENCES OF A SENTENCE THAT INCLUDED COMMUNITY SUPERVISION FOR LIFE, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT FOUR
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
Having considered these contentions in light of the record and the controlling legal principles, we are satisfied they lack "sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Sokalski in his decision rendered from the bench on August 15, 2008; we are satisfied those reasons are based upon substantial credible evidence in the record. We add only the following brief comments.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.
The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 ( 1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.
Here, defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel.
Notwithstanding Judge Sokalski's conclusion that defendant's petition was time barred under Rule 3:22-12, the judge addressed and decided the merits of defendant's claim. The record clearly supports the judge's conclusions that defendant understood English at the time of his plea, and that both the judge and defense counsel questioned him as to his understanding of the Megan's Law consequences of that plea, specifically with respect to community supervision for life.
At the time defendant filed his PCR petition in April 2007, he had not only been subject to community supervision for life for the past four years, he had served time in jail for violating the conditions of that supervision. Under the circumstances, defendant is hard-pressed to demonstrate "excusable neglect" sufficient to relax the time bar in Rule 3:22-12. State v. Mitchell, 126 N.J. 565, 576 (1992). Nor has he demonstrated that the "interests of justice require" relaxation of that bar. State v. Goodwin, 173 N.J. 583, 589 (2002).
We reject defendant's contention that the five-year period should run from "the point when [he] was finally told what [community supervision for life] really meant." First, such an interpretation "would render [the rule] virtually meaningless." State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999). Secondly, the bar did not prove fatal to the resolution of defendant's claim on the merits, notwithstanding his claim to the contrary.
Defendant's contention that the procedural bar of Rule 3:22-3 should not preclude his petition was not raised below; nor did the judge invoke this rule in his decision; therefore, we will not consider it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Having failed to demonstrate a prima facie case of ineffective assistance of counsel, defendant was not entitled to a plenary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
__________
CLERK OF THE APPELLATE DIVISION