Opinion
DOCKET NO. A-0095-11T2
04-10-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DARREN HARVEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William B. Smith, Assistant Deputy Public Defender, of counsel and on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 96-11-1555.
Joseph E. Krakora, Public Defender, attorney for appellant (William B. Smith, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the November 8, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). We reverse and remand this matter to the Law Division for further proceedings in light of State v. Schubert, 212 N.J. 295 (2012).
On November 1, 1996, a Bergen County Grand Jury returned an indictment charging defendant with fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (count one); and second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(1). Defendant entered an initial plea of not guilty to the charges on December 16, 1996.
At some point, two other indictments were returned against defendant charging him with, among other offenses, third-degree distribution of a controlled dangerous substance (CDS) within 1000 feet of school property, N.J.S.A. 2C:35-7, and fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-3(e). The three indictments arose from incidents alleged to have occurred on separate dates and were unrelated to each other. Defendant was represented by private counsel on the indictment charging him with the sexual offenses, and by the Office of the Public Defender on the other indictments.
Pursuant to a plea bargain, on September 3, 1997, defendant retracted his plea of not guilty and pled guilty to count two of the first indictment charging him with second-degree sexual assault. Defendant also pled guilty to the charges we have noted in the other indictments. In exchange for the plea, the State agreed to dismiss all other charges in the three indictments and to recommend a "maximum custodial sentence on all charges" of five years imprisonment, with a three-year period of parole ineligibility on the CDS offense.
As the State was setting forth the terms of the plea bargain on the record in the presence of counsel and defendant, the judge interjected and stated, "Megan's Law applies as well." The prosecutor replied that "Megan's Law applies" and explained that "all parties" signed the supplemental three-page plea form concerning sexual offenses.
"Megan's Law", L. 1994, c. 127 to 134, established a system of registration and community notification for certain sex offenders, and set forth various sentencing and community supervision requirements pertaining to such offenders. N.J.S.A. 2C:4-6.4 was also adopted as part of Megan's Law, and provided that a judge imposing sentence on a person convicted of, among other things, sexual assault, "shall include" a special sentence of community supervision for life. See L. 1994, c. 130. Although the statute was amended in 2003 to change "community supervision for life" to "parole supervision for life," G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 401 n.4 (App. Div. 2008), aff'd, 199 N.J. 135 (2009), because defendant committed this crime before these revisions were enacted, he remains under the former designation, community supervision for life. N.J.A.C. 10A:71-6.11(a).
That form was signed by defendant, defense counsel and the prosecutor, and the answer "YES" was circled with respect to each question. On that form, defendant acknowledged his obligation to register and verify his address. Defendant also answered "YES" on that form to the question, "Do you understand that if you are pleading guilty to . . . sexual assault . . . the court, in addition to any other sentence, will impose a special sentence of community supervision for life?" Further, he answered "YES" to the next two questions that explained the criminal consequences for violating community supervision for life.
Prior to accepting the plea, the judge was advised by counsel that he had "go[ne] over [the plea] forms as well as Megan's Law" with defendant. The judge also asked defendant if counsel had explained to him "Megan's Law . . . [and] the consequences of that law[,]" and defendant answered "yes." Defendant also acknowledged that he read the forms prior to signing, that the answers to each question "are in fact [my] answers[,]" and that they are "accurate and correct."
Defendant represented that he freely accepted the plea offer without threat or force, and, thereafter, set forth on the record a sufficient factual basis for each offense. The judge accepted the plea and set a date for sentencing.
The record before us does not include the sentencing transcript. Defendant was apparently sentenced on January 16, 1998, and the Bergen County Supervisor of Court Reporters stated on June 9, 2010, that a "thorough search" of the storage facility for the recordings failed "to locate [sic] a copy of the video tape and as a result no transcript can be prepared."
Further, the first judgment of conviction (JOC) provided to us is identified as an "Amended JOC[,]" which was signed by the sentencing judge on March 25, 1999. The JOC reveals that sentence was imposed on January 16, 1998, and states that defendant "is sentenced" to five years of imprisonment and that the sentence is "to run concurrent" with the sentences on the other indictments. However, while the JOC states "MEGAN'S LAW TO APPLY[,]" the box next to the statement "You are hereby sentenced to community supervision for life" is not marked.
On May 21, 2003, the Acting Chairman of the New Jersey State Parole Board wrote to the sentencing judge noting that sentence was imposed upon defendant on January 16, 1998, and the "question has arisen" whether community supervision for life pursuant to N.J.S.A. 2C:43-6.4 applied. He requested the judge to advise whether the sentence he imposed was to have required community supervision for life. The letter was copied to the original prosecutor and defense counsel.
The sentencing judge replied by letter on June 3, 2003, that both the original and the amended JOC stated "Megan's Law to Apply[,]" and that defendant had executed the supplemental plea form for "certain sexual offenders" we referenced earlier. The judge then concluded that "[p]ursuant to said documents, I am issuing another amended [JOC] which will fully set forth the intentions of the [c]ourt on the sentencing date and the expressed expectations and understanding" of defendant. The letter was also copied to the original prosecutor and defense counsel.
The judge then entered a second amended JOC on June 3, 2003, which was the same as the first amended JOC in the record before us, except that the judge marked the provision, "The [d]efendant is hereby sentenced to community supervision for life." The record does not indicate when defendant first learned of the second amended JOC, or whether defendant was notified by the New Jersey State Parole Board that he was, in fact, subject to community supervision for life.
On December 10, 2009, defendant filed a pro se petition for PCR in which he stated:
I took a plea bargain for 5 years with three year mandatory min - Megan's Law. State amended my judgment of conviction 5 years later and gave me a different sentence with more responsibilities without my permission. And these new responsibilities I did not cop out to.Counsel subsequently entered an appearance on behalf of defendant and a brief was filed for defendant which argued, "trial counsel was ineffective [for] failing to advise petitioner that by pleading guilty to sexual assault he would be subject to community supervision for life." While the brief asserted that defendant would not have pled guilty to sexual assault had he known he would be subject to community supervision for life, this assertion was not the subject of any certification or affidavit by defendant.
The sentencing judge having retired, the matter was assigned to another judge who denied the petition without holding an evidentiary hearing. In a written opinion issued on November 8, 2010, the judge held that the petition was time-barred under Rule 3:22-12. He explained that defendant had taken the plea and been sentenced over ten years earlier and that to grant the relief sought by defendant "would greatly prejudice the State."
The PCR petition was the subject of oral argument on November 5, 2010. At that time, the judge inquired about the presence of defendant, and defendant's counsel replied that defendant was aware of the hearing, and was out of state and taking medication that would "prevent him from traveling." Counsel consequently waived the appearance of defendant at the hearing. The judge thereupon agreed to review the materials submitted by counsel, and indicated he would issue a written opinion.
The judge nonetheless addressed defendant's ineffective assistance of counsel claim and, after reviewing the materials we referenced earlier, concluded that defendant "had been adequately advised of the [c]ommunity [s]ervice requirement, evidenced by the plea forms and the colloquy" with the court at the time of the plea. The judge then entered an order denying the petition and this appeal followed.
Defendant raises the following arguments on appeal:
POINT I: REVERSAL IS REQUIRED BECAUSE THE COURT ERRONEOUSLY ALLOWED DEFENSE COUNSEL TO WAIVE DEFENDANT'S APPEARANCE AT HIS PCR HEARING; ADDITIONALLY, COUNSEL WAS INEFFECTIVE IN WAIVING DEFENDANT'S APPEARANCE.Although we find that defendant's argument in POINT I is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), the record before us suggests that the action of the sentencing court in amending the JOC in 2003 to explicitly impose community supervision for life under N.J.S.A. 2C:43-6.4 may impair defendant's rights under the double jeopardy clauses of the United States and the New Jersey Constitutions, U.S. Const. amend. V, and N.J. Const. art. I, ¶ 11. Despite not having been raised in the Law Division, the issue concerns constitutional rights warranting consideration. See Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). Because that issue was not raised and, was therefore, unexplored in the Law Division, and may require an evidentiary hearing, given the absence of the sentencing transcript, we remand the matter to the trial court for further proceedings.
POINT II: DEFENDANT SHOULD BE ALLOWED TO RETRACT HIS GUILTY PLEA TO SECOND-DEGREE SEXUAL ASSAULT SINCE HE WAS NOT ADVISED BY THE COURT OR COUNSEL THAT THE SENTENCING WOULD INCLUDE COMMUNITY SUPERVISION FOR LIFE.
POINT III: [THE PCR JUDGE] ERRED IN RULING THAT THE PCR PETITION SHOULD BE DENIED BECAUSE IT WAS FILED OUT OF TIME.
See Rule 2:5-3(f), which provides that if a verbatim record of proceedings is unavailable, the court from which the appeal was taken shall supervise the "reconstruction of the record." Cf. State v. Izaguirre, 272 N.J. Super. 51, 56-57 (App. Div.) (due process can be implicated by loss of a transcript if it impedes defendant's ability to secure meaningful review of the proceeding under review), certif. denied, 137 N.J. 167 (1994). We, of course, understand that defendant failed to seek a statement of the plea proceedings in lieu of a transcript pursuant to court rule, and consequently we draw no inferences in defendant's favor from the absence of the transcript.
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In Schubert, supra, 212 N.J. 295, the Supreme Court considered the defendant's claim that the trial court's imposition of community supervision for life after the defendant had completed his sentence violated his constitutional protection against double jeopardy contained in both the Fifth Amendment to the United States Constitution and Article I, paragraph 11 of the New Jersey Constitution. Id. at 299. In 1996, an indictment had been returned against the defendant charging him with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), among other crimes, and in 2000, he agreed to plead guilty to that charge in return for the State's agreement to dismiss all other charges and to recommend that he be sentenced as if he had pled guilty to a third-degree crime and receive a sentence of non-custodial probation. Id. at 299-300.
At the plea hearing, the defendant executed a plea form, including the "certain sexual offenses" plea form in which he acknowledged that the court "will impose a special sentence of community supervision for life." Id. at 300. During the plea colloquy between defendant and the court, defendant acknowledged that he would be examined at the Adult Diagnostic and Treatment Center in Avenel and would have to register and provide address verifications. Ibid. At sentencing, the court noted receipt of the Avenel report and imposed a probationary term of three years. Defendant was discharged from probation in June 2003. Ibid.
In October 2007, the New Jersey State Parole Board wrote to the sentencing court and asked if the defendant's sentence should be amended to include a provision for community supervision for life. Id. at 300-01. In response to the court's subsequent inquiry to the original prosecutor and defense counsel, the defendant's former counsel stated he had not represented the defendant in "years" and could neither consent nor object to any amendment of the JOC. Id. at 301. The court entered an amended JOC on April 30, 2008, which explicitly imposed community supervision for life. Ibid.
Upon learning of the entry of the amended JOC, the defendant promptly filed a PCR petition and argued, among other things, that the court's action subjected him to double jeopardy. Id. at 302. The sentencing court, relying upon the defendant's explicit acknowledgment in the plea form of the court's obligation to impose community supervision for life at the time of sentencing, denied the petition. Ibid. We reversed the sentencing court and concluded that the court's action in amending the JOC after the defendant had completed his sentence violated his double-jeopardy rights. Id. at 303. The Supreme Court, with two justices dissenting, affirmed our ruling and remanded the matter to the sentencing court to re-enter the JOC that had been entered in 2000. Id. at 299, 308-13, 316.
The Supreme Court stated that the imposition of community supervision for life pursuant to N.J.S.A. 2C:43-6.4 "is punitive rather than remedial at its core[,]" id. at 308, and explained that while the defendant's initial sentence was illegal because it failed to impose mandatory community supervision for life, id. at 309, the sentencing court's action, undertaken after the defendant's original sentence was completed, nonetheless was a violation of the constitutional prohibition against double jeopardy. Id. at 316.
The State had argued that the defendant's double jeopardy argument was flawed because "'the key to double jeopardy analysis of a sentence increase or correction is whether the defendant had a legitimate expectation in the finality of his original, incorrect sentence,'" id. at 312, and that, under the circumstances presented, the defendant could not have had such an expectation. The Supreme Court rejected that argument, noting that the record contained "not a hint" that "either defendant or his attorney had engaged in some effort to mislead the court with respect to omitting" community supervision for life from the sentence. Ibid.
Now, there are notable differences between the facts in Schubert and those before us. Here, not only did defendant execute the supplemental "certain sexual offenders" plea form, both he and his counsel explicitly acknowledged that defendant was informed about and understood "Megan's Law . . . [and] the consequences of that law." Moreover, the JOC stated "MEGAN'S LAW TO APPLY." Also, in Schubert, the defendant promptly filed his PCR petition, id. at 302, whereas, in this case, defendant's petition was brought over five years after the 2003 amended JOC was entered.
While we might otherwise be inclined simply to affirm the order of the PCR judge with respect to defendant's ineffective assistance of counsel argument, we hesitate to do so on this record. There should be an appropriate effort made to reconstruct the sentencing transcript under Rule 2:5-3(f), and to ascertain when defendant was first informed of the 2003 amendment at issue and his actions thereafter. Such facts will bear upon the double jeopardy issue, the ineffective assistance of counsel claim and application of the time-bar of Rule 3:22-12. Moreover, different consequences may obtain if defendant is found to be entitled to relief under a double jeopardy claim, as opposed to an ineffective assistance of counsel claim. A constitutional violation of double jeopardy protection would require vacating the imposition of community supervision for life. See R. 3:21-10(b)(5) and Schubert, supra, 212 N.J. at 316. On the other hand, a successful ineffective assistance of counsel claim may require vacating the plea. See R. 3:9-2; State v. Bellamy, 178 N.J. 127 (2003) (vacating the defendant's guilty plea where he was not informed of the consequences of the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38).
The order of the Law Division is reversed and the matter is remanded for further 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