Opinion
DOCKET NO. A-2086-11T4
01-22-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RUSSELL TINSLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney (Jack J. Lipari, Special Deputy Attorney General/Acting Assistant County Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-09-2253.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney (Jack J. Lipari, Special Deputy Attorney General/Acting Assistant County Prosecutor, of counsel and on the brief). PER CURIAM
In this appeal of the denial of his post-conviction relief (PCR) petition, defendant argues his trial counsel during the entry of guilty pleas in 1998 and 2008, as well as his appellate counsel in his direct appeal of the 2008 judgment of conviction, were ineffective. We find no merit in his arguments and affirm.
Our decision is informed by this matter's convoluted history. In 1997, defendant was indicted and charged with: third-degree theft, N.J.S.A. 2C:20-3; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and second-degree eluding, N.J.S.A. 2C:29-2(b). On June 9, 1998, pursuant to a negotiated plea agreement containing the State's agreement to recommend a six-year prison term, defendant entered a guilty plea to third-degree theft and second-degree eluding. At the plea hearing, defendant acknowledged that, on August 22, 1997, in Hammonton, he took a Lincoln Town Car that he observed on the street while waiting for a bus. During his unauthorized use of this vehicle, he was pursued by a police vehicle, which he attempted to elude until finally apprehended. Sentencing was scheduled for August 21, 1998. Defendant did not appear for sentencing.
According to defendant, at some point in 1998, he was in the custody of California authorities who reached out to the State regarding the 1997 indictment. Defendant claims that the California authorities were told by the State's representatives that "it was not worth it to extradite a 'car thief' and that the charge was dismissed." He further claims that he remained in California for medical treatment for several years thereafter.
Defendant also asserted in his PCR petition that "[he] returned to Philadelphia," and that "[a]fter some period of time," a New Jersey warrant "appeared." The record on appeal reveals that defendant was arrested in Philadelphia and convicted in 2005 of an aggravated sexual assault for which he was sentenced to a twenty-three month prison term, followed by an eight-year probationary term. In 2008, defendant was extradited to New Jersey for further proceedings on the 1997 indictment.
Instead of simply sentencing defendant based on the prior plea agreement, the State offered an amended agreement, which differed in that the State sought only defendant's guilty plea to third-degree eluding and agreed to recommend a four-year instead of a six-year prison term. The presentence report revealed that among defendant's prior convictions, he had been convicted of sex offenses in California in 1984 and in Pennsylvania in 2005.
In pleading guilty to eluding in 2008, defendant was not advised by his trial attorney that he potentially faced civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, based on the out-of-state sex offenses. Defendant was sentenced, pursuant to the new plea agreement, to a four-year prison term and given credit for 273 days in incarceration.
Defendant filed an appeal, which was heard by an excessive sentence oral argument panel. On April 24, 2009, we affirmed the judgment of conviction with the exception that the judgment was amended to reflect an additional 167 days in jail credits.
Prior to defendant's release from prison, the State filed a petition for defendant's civil commitment pursuant to the SVPA. That petition was granted on May 10, 2010, and defendant was transferred to the Special Treatment Unit in Avenel.
On August 31, 2010, defendant filed his PCR petition, which was amended on November 8, 2010, following the appointment of counsel. On July 14, 2011, the PCR judge denied relief without conducting an evidentiary hearing.
Defendant appeals, arguing he established a prima facie claim for relief because he was denied the effective assistance of counsel during: (1) the 1998 plea negotiation proceedings; (2) the 2008 plea negotiations; and (3) the direct appeal of the 2008 judgment of conviction.
In seeking relief based on a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance "fell below an objective standard of reasonableness" and there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). In State v. Fritz, 105 N.J. 42, 49-53 (1987), this standard was incorporated into this State's "jurisprudential framework." State v. Allegro, 193 N.J. 352, 366 (2008). In applying these principles, we find no merit in defendant's arguments regarding the performance of his counsel during the 1998 and 2008 plea proceedings or the performance of prior appellate counsel.
I
Defendant argues that he was misinformed and coerced into entering his guilty plea to third-degree theft and second-degree eluding in 1998. In his sworn statement in support of his PCR petition, defendant asserted that his counsel at that time:
continuously told me that if I went to trial and lost that I would do 10 years, 5 without parole and that I had no chance of winning. He refused to allow me to make the decision about taking my case to trial and just told me that I was pleading guilty.Defendant further asserted that as a result of this advice, he accepted the plea offer of a six-year term.
Even if we were to assume counsel's advice could be shown to be unacceptable, it had no further bearing on what occurred ten years later. The fact remains that defendant was not prejudiced by this alleged poor advice because, although defendant pleaded guilty in 1998, that guilty plea was vacated in 2008 when defendant pleaded guilty to a lower degree eluding charge. In short, defendant has not shown that he was prejudiced by the 1998 advice. And his convoluted argument that this allegedly misinformed 1998 guilty plea set in motion a chain of events that ultimately led to his civil commitment has insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant also argues that his counsel in the 1998 proceedings was ineffective because he did not advise him that his guilty plea could lead to his civil commitment pursuant to the SVPA. Because the SVPA was not enacted until August 12, 1998, L. 1998, c. 71, § 1, approximately three months after the guilty plea, trial counsel at that time had no obligation to advise of the future impact of the SVPA. See also State v. Bellamy, 178 N.J. 127 (2003); State v. J.K., 407 N.J. Super. 15 (App. Div.), certif. denied, 200 N.J. 209 (2009). The reasons upon which we reject the ineffectiveness argument regarding defendant's counsel during the 2008 proceedings also apply here.
II
Defendant next argues that his 2008 trial counsel was ineffective because he allegedly did not (a) advise of the potential for civil commitment pursuant to the SVPA or (b) challenge the continued prosecution of this indictment based on the State's decision not to seek extradition nine years earlier. We reject both these arguments.
A
As to the first, we agree with the trial judge that counsel during the 2008 trial court proceedings was not obligated to inform defendant of the potential for civil commitment because the proceedings involved theft and eluding charges, which are not SVPA predicate offenses. The SVPA defines a "sexually violent predator" as a person who, among other things not relevant here, "has been convicted . . . of a sexually violent offense . . . and suffers from a mental abnormality or personality order that makes the person likely to engage in acts of sexual violence if not confined . . . ." N.J.S.A. 30:4-27.26. The SVPA defines "sexually violent offense" in two ways. The first, contained in paragraph (a) of the phrase's definition in N.J.S.A. 30:4-27.26, includes: "aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to [N.J.S.A. 2C:13-1(c)(2)(b)]; criminal sexual contact; felony murder pursuant to [N.J.S.A. 2C:11-3(3)] if the underlying crime is sexual assault; an attempt to commit any of these enumerated offenses; or a criminal offense with substantially the same elements as any offense enumerated above, entered or imposed under the laws of the United States, this State or any other state." And the second, contained in paragraph (b) of the phrase's definition in N.J.S.A. 30:4-27.26, includes "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense."
In 2008, defendant was indicted for theft and eluding offenses, none of which met the definition of either paragraphs (a) or (b) of the "sexually violent offense" definition contained in N.J.S.A. 30:4-27.26. Instead, at the time counsel was assigned to represent defendant in 2008, defendant had already been convicted of sexually violent offenses in other states that, for present purposes, we assume met the SVPA's definition of a "sexually violent offense." Counsel's advice that defendant accept the plea agreement and enter a guilty plea to third-degree eluding had no impact on defendant's eligibility for SVPA commitment. The State is not limited to seeking SVPA commitment of individuals incarcerated in state prison. Although commitment is ordinarily sought at or about the time the State "anticipate[s]" an eligible person's "release from total confinement . . . for a sexually violent offense," N.J.S.A. 30:27.27(a)(1), SVPA commitment may be sought by the State whenever "it appears that a person may meet the criteria of a sexually violent predator as defined" in the SVPA, N.J.S.A. 30:4-27.27(a). See N.J.S.A. 30:4-27.27(e) (declaring that the circumstances referred to in this section "are not jurisdictional" and do not prevent the Attorney General "from initiating a proceeding against a person otherwise subject to the provisions of [the SVPA]"). Consequently, defendant was eligible for SVPA commitment at the time counsel began his representation of defendant in 2008 and nothing that actually occurred -- and nothing that defendant hoped would occur -- during that representation affected the State's later application for civil commitment pursuant to the SVPA. Had defendant rejected the plea agreement and gone to trial and been acquitted, or even if the State simply dismissed the indictment, defendant was still eligible for SVPA civil commitment based on his prior unrelated conduct.
In his appeal brief, defendant concedes that the presentence report prepared for his sentencing in 2008 revealed defendant had "previous S.V.P.A. predicate offense convictions in California [in 1984] and Pennsylvania [in 2005]."
--------
In short, even if counsel had an obligation to advise defendant of the potential for SVPA civil commitment and failed to do so, he was not prejudiced because that advice and the things defendant could have done if the advice was given would have made no difference.
B
We also find no merit in defendant's argument that the State's failure to seek extradition during the time defendant was incarcerated in California violated his due process rights and, ultimately, set off a chain of events that caused his SVPA commitment. As we have demonstrated, it was defendant's commitment of sexually violent offenses in California in 1985 and in Pennsylvania in 2005 that led to his commitment, not this indictment or his ultimate eluding conviction. Even if we assume defendant had a viable due process claim in 2008 that required dismissal of the indictment in this case -- based on the State's decision to forego extradition until defendant was incarcerated in a neighboring state -- defendant's application for dismissal of the indictment would not have avoided SVPA commitment. Defendant was already eligible for civil commitment whether convicted or acquitted of the charges contained in the indictment in this case.
III
Defendant's argument that he was denied the effective assistance when seeking review of the 2008 judgment of conviction is based on appellate counsel's failure to pursue in the appeal the arguments we have just considered regarding the performance of trial counsel in 1998 and 2008. For the same reasons, we find insufficient merit in defendant's arguments regarding the performance of appellate counsel to warrant further discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION