STATE OF NEW JERSEY VS. G.M. (93-01-0006 AND 96-05-0776, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4263-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
G.M.,
Defendant-Appellant.
_________________________
Submitted May 30, 2019 – Decided June 12, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment Nos. 93-01-0006
and 96-05-0776.
Joseph E. Krakora, Public Defender, attorney for
appellant (Dianne Glenn, Designated Counsel, on the
brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant G.M.1 appeals from an April 30, 2018 order denying his post-
conviction relief (PCR) petition and request for an evidentiary hearing. We
affirm.
We take the following facts from the record. In 1993, defendant pled
guilty to third-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3, of his girlfriend's
three-year-old daughter. He received a three year sentence. In 1996, defendant
pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(b), of his eight-
year-old daughter and was sentenced to a five year term, Megan's Law
registration, and evaluation and commitment to the Adult Diagnostic Treatment
Center. Defendant did not appeal from either the convictions or the sentences.
Instead, defendant filed a PCR petition over twenty-three years after the
first conviction and nearly seventeen years after the second. He claimed his first
plea counsel was ineffective for not advising him the plea could be used to
determine he was a sexually violent predator in the event of a subsequent
conviction. He claimed his second plea counsel was ineffective because he did
not advise defendant to pursue a PCR petition to vacate his first plea on such
grounds and did not explain the civil commitment process to him.
1
We utilize initials to protect the victims' identities.
A-4263-17T4
2
The PCR judge ruled defendant's petition was time-barred pursuant to
Rule 3:22-12. The judge found defendant's ignorance of the time period he had
to file his petition did not constitute excusable neglect or grounds to relax the
time limitations under the rule. The judge concluded the State would be
prejudiced if he granted the petition because the events which led to defendant's
convictions occurred in 1993 and 1996, and even if the State could locate
witnesses, "their recollection of the relevant events would be shaky at best." The
judge noted there was no transcript of defendant's 1993 plea. He found
defendant was adequately informed of the possibility of civil commitment
because, on defendant's 1996 plea form, he "answered in the affirmative when
asked if he understood that civil commitment beyond his initial prison term is a
possibility" and confirmed "trial counsel advised [him] about the civil
commitment review process, its frequency, and avenues of legal appeal[.]" This
appeal followed.
On appeal, defendant argues as follows:
THE PCR COURT ERRED IN CONCLUDING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WAS TIME-BARRED AS
THE DELAY WAS DUE TO DEFENDANT'S
EXCUSABLE NEGLECT AND ENFORCEMENT OF
THE TIME-BAR WILL RESULT IN A
FUNDAMENTAL INJUSTICE.
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When the PCR court does not hold an evidentiary hearing, we "conduct a
de novo review[.]" State v. Harris, 181 N.J. 391, 421 (2004). To show
ineffective assistance of counsel, a defendant must satisfy the two-pronged test
of Strickland v. Washington, 466 U.S. 668, 687 (1984) and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 67 (1987). "The defendant must
demonstrate first that counsel's performance was deficient, i.e., that 'counsel
made errors so serious that counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J.
269, 279 (2012) (quoting Strickland, 466 U.S. at 687). The "defendant must
overcome a strong presumption that counsel rendered reasonable professional
assistance." Ibid. (citing Strickland, 466 U.S. at 689). Second, "a defendant
must also establish that the ineffectiveness of his attorney prejudiced his
defense. 'The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have
been different.'" Id. at 279-80 (quoting Strickland, 466 U.S. at 694).
Having considered defendant's claims under the aforementioned
standards, we affirm for the reasons stated by the PCR judge. We add the
following comments to address defendant's argument that the holding in State
v. Bellamy, 178 N.J. 127 (2003), applied retroactively to his case because his
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PCR petition constituted a form of direct review, which he had not yet
exhausted.
In Bellamy, the Supreme Court held that before accepting a plea that could
lead to a civil commitment under the New Jersey Sexually Violent Predator Act,
fundamental fairness requires the court to inform a defendant of the potential
consequences of the plea, including lifelong civil commitment. Id. at 139. The
Court stated its ruling would apply with limited retroactivity to those cases
pending direct review at the time. Id. at 142-43.
It is fundamental that a PCR petition "is not . . . a substitute for appeal
from conviction[.]" R. 3:22-3. There are limited exceptions to this rule. See
State v. Koch, 118 N.J. Super. 421, 429, 432-33 (App. Div. 1972) (holding a
PCR petition was not barred by Rule 3:22-3 where a defendant raised a claim of
limited retroactivity on direct appeal that was denied without prejudice).
Defendant failed to appeal from either conviction. For these reasons, we
reject the argument his PCR petition was a form of direct review permitting the
retroactive applicability of the holding in Bellamy.
Affirmed.
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