Opinion
DOCKET NO. A-0885-10T2
01-12-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DOUGLAS MINATEE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara Rosenkrans, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-10-3452.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara Rosenkrans, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Douglas Minatee appeals from a March 12, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). He claims his attorney provided ineffective assistance when defendant pleaded guilty in 1993 to first-degree aggravated sexual assault because the attorney did not inform him that his conviction could later be used to support his civil commitment pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm the Law Division's order denying the PCR petition.
Defendant was indicted in 1992 on charges of first-degree kidnapping, N.J.S.A. 2C:13-1b; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; third-degree criminal restraint, N.J.S.A. 2C:13-2; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The State alleged that defendant had forcibly brought into the basement of his residence a four-year-old child who was playing nearby and placed his penis into her mouth.
Defendant entered into a plea agreement with the State for a maximum sentence recommendation of twelve years imprisonment. In January 1993, he pleaded guilty to the charge of aggravated sexual assault. At his plea hearing, defendant admitted he had taken the child to a front hallway of his residence and put his penis into her mouth while he was under the influence of drugs and alcohol. He was sentenced on September 27, 1993, to ten years imprisonment, to be served at the Adult Diagnostic and Treatment Center for sex offenders. Defendant did not file a direct appeal from his conviction or sentence.
In October 1999, the State filed a complaint for the civil commitment of defendant pursuant to the SVPA, N.J.S.A. 30:4-27.24 to -27.38, which was enacted in 1998. The Law Division held a hearing and granted the State's application for defendant's temporary civil commitment.
In 2007, the court held hearings to consider the gradual release of defendant from civil commitment. It issued an order in May 2007 for defendant's conditional discharge. In September 2007, however, the State moved before the court to modify the discharge plan on the ground that defendant intended to reside with a relative who was a registered sex offender. As a result of the State's assertion that defendant had not been honest with the court regarding his intentions upon discharge, further hearings were held and defendant remained under the order of civil commitment.
In February 2009, defendant filed a PCR petition to vacate his 1993 conviction. He alleged that the defense attorney who had negotiated his plea agreement and sentence in 1993 had provided ineffective assistance, in violation of his rights under the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution, because counsel failed to advise defendant that his conviction could be used in a future civil commitment proceeding. Judge Sherry Hutchins-Henderson heard argument and denied the PCR petition by written opinion on March 12, 2010.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER COUNSEL WAS INEFFECTIVE.Finding no merit in these arguments, we affirm the judge's order for reasons stated in her written opinion.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY RAISED DOES NOT APPLY TO DEFENDANT'S CASE.
C. THE FIVE YEAR TIME BAR SHOULD BE RELAXED DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND/OR THE INTERESTS OF JUSTICE.
D. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO NOTIFY DEFENDANT THAT HE WOULD BE SUBJECT TO THE SEXUALLY VIOLENT PREDATOR'S ACT, UNDER N.J.S.A. 30:4-27.
E. DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY AND SHOULD BE VACATED SINCE HE WAS NOT ADVISED THAT HE WOULD BE SUBJECT TO THE SEXUALLY VIOLENT PREDATOR'S ACT.
In summary form, we conclude that the PCR petition was properly denied without an evidentiary hearing because: (1) it was barred by the five-year limitation period of Rule 3:22-12, having been filed more than fifteen years after the judgment of conviction; (2) the defense attorney at the time of defendant's guilty plea could not have been ineffective in failing to predict the enactment of the SVPA five years later and the effect that legislation might have on defendant's liberty in the future; and (3) the New Jersey Supreme Court has already held in State v. Bellamy, 178 N.J. 127, 143 (2003), that the ground for relief defendant raises is not retroactively applicable to convictions that were beyond direct appeal at the time of the Bellamy decision in December 2003. Under Bellamy's limited retroactivity holding, id. at 142-43, a defendant would not be entitled to relief even if he had filed a timely PCR petition and even if his attorney had failed to advise him that he could be civilly committed at a time between 1998 and 2003 when the SVPA was in effect. Consequently, an attorney's representation of a criminal defendant was not deficient on the ground that he did not advise the defendant he might be committed before enactment of the SVPA in 1998.
Defendant's PCR petition did not demonstrate a prima facie showing that his attorney provided ineffective assistance at the time of his guilty plea in 1993.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION