STATE OF NEW JERSEY v. PATRICK LEWIS (2011)

Defendant Patrick B. Lewis appeals the denial of his petition for post-conviction relief (PCR).  We affirm.

I.

We discern the following procedural and factual history from the record.

On March 18, 1998, Lewis was charged by a Union County Grand Jury with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1) (count one);  second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b) (count two);  and second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (count three).   At a plea hearing on January 25, 1999, Lewis admitted that, on October 8, 1997, he committed an act of sexual penetration with a four-year old child, in violation of N.J.S.A. 2C:14-2(a)(1).

Lewis entered into a plea agreement with the State.   Under the agreement, he would plead guilty to first-degree aggravated sexual assault, which the prosecutor agreed would be treated as a second-degree offense for sentencing purposes.   The prosecutor also agreed to recommend a five-year term of incarceration.¹  Counts two and three of the indictment were to be dismissed at the time of sentencing.

At the plea hearing on January 25, 1999, the following colloquy occurred between the plea judge and Lewis:

Q: Did your lawyer answer your questions and explain to you your rights and responsibilities?

A: Yes, she did.

Q: Did you sign the plea form?

A: Yes, I did.

Q: Did you read it before you signed it?

A: Yes, I did.

Q: Do you understand it?

A: Yes.

The judge advised Lewis that he would be subject to a psychiatric evaluation at Avenel Adult Diagnostic and Treatment Center (Avenel) because of the nature of the offense.   Depending upon the results of the evaluation, he would serve a maximum of five years at either Avenel or state prison.

With respect to future consequences of the plea, the following exchange took place:

[THE COURT] Do you understand that you would, if you are found to be repetitive and compulsive and qualify for sentencing under the Sex Offender Act [N.J.S.A. 2C:47-1 to -10], that in fact you could serve the full five years of your term and even be held beyond the five years of your term if you are still found to be a threat to the community and risk of reoffending.[[2]  Do you understand that?

[DEFENDANT] Yes.

[THE COURT] Until you are cured of your problem.   Do you understand that?

[DEFENDANT] Yes.

In the supplemental plea form for sex offenders, Lewis acknowledged his understanding that (1) he had the right to challenge the findings of the Avenel exam, but could ultimately be sentenced to Avenel for a specialized treatment program;  and (2) that, if sentenced to Avenel, parole would “not be guided by the normal parole guidelines” and that he “could spend more time in treatment than [he] would spend if sentenced to state prison.”   In an additional form concerning “certain sexual offenses,” Lewis acknowledged his understanding of further consequences of his guilty plea, including the fact that he would be “subject to involuntary commitment following the expiration of [his] sentence.”

After Lewis signed the plea forms, the judge asked him whether he understood that, “again, if you are found to be repetitive and compulsive, even at the expiration of your sentence, if you are still found to be repetitive and compulsive and a threat to the community, you could be held beyond your normal term of five years?   Do you understand all that?”   Lewis responded “yes.”

The sentencing hearing was held on July 16, 1999.   Lewis's counsel stated her concern that Lewis “may be held indefinitely [at Avenel] and I have explained that to my client.”   The judge responded that Lewis was informed at the plea hearing that “he is subject to extended periods of incarceration on a civil commitment if he's a threat to others.”

The Avenel evaluation had determined that Lewis's behavior was “repetitive and compulsive” and recommended treatment at Avenel.   Lewis's counsel initially requested an evidentiary hearing, with expert medical testimony, on the issue of whether Lewis's was, in fact, “repetitive and compulsive.”   However, after further consultation with Lewis, defense counsel withdrew the request.

Lewis was sentenced to a flat five-year term at Avenel.   Counts two and three were dismissed.   Mandatory fines and penalties were assessed, and Lewis received a jail credit of 219 days.

Lewis filed a pro se petition for PCR on August 30, 2000.   The Office of the Public Defender, noting that a direct appeal had not been timely filed, asked that the petition be withdrawn so consideration could be given to filing a direct appeal as within time.   The petition was withdrawn by an order entered on October 31, 2000.   No direct appeal was filed.

By the time he entered into the plea agreement, Lewis had undergone several surgeries for a brain tumor, the earliest at the age of nine or ten.   Since the surgeries, Lewis had been treated with Dilantin, a prescription medication used to prevent seizures.   Lewis underwent two additional surgeries after he was shot in the head during a robbery in which he was a victim.   They occurred sometime in 1999.

Upon completion of his minimum sentence on June 21, 2002, Lewis was civilly committed pursuant to the New Jersey Sexually Violent Predator Act (SVP Act), N.J.S.A. 30:4-27.24 to -27.38. The SVP Act had been approved on August 12, 1998, which was after the date of Lewis's offense.   It did not take effect until August 12, 1999, twenty-eight days after Lewis's sentencing.

On October 4, 2007, Lewis filed a second pro se petition for PCR. The petition was supplemented by designated counsel on April 16, 2008.   Claiming that his trial counsel was ineffective, Lewis sought to have his guilty plea set aside.   He argued that his attorney was ineffective because she failed adequately to inform him that a guilty plea to first-degree aggravated sexual assault would subject him to civil commitment under the SVP Act. He also sought an evidentiary hearing on his claim of ineffective assistance of counsel.

Following oral argument on June 13, 2008, Judge Douglas M. Fasciale denied Lewis's petition to withdraw his guilty plea.   In a written opinion filed on the same day, the judge concluded that

it is clear that Mr. Lewis was made aware that his plea subjected him to potential civil commitment under the [SVP Act]. [The plea judge] stated this to Mr. Lewis on the record at his plea hearing.  [His attorney] then state[d] on the record at the sentencing hearing that she spoke with Mr. Lewis about this possibility․  This court finds that Mr. Lewis was made aware of this possible collateral consequence by the judge at his plea hearing and by trial counsel at his sentencing.

The judge also addressed Lewis's additional claim that his guilty plea was involuntary because he did not fully understand the consequences of the plea due to his medical condition, allegedly caused by neurosurgeries to treat the gunshot wound to his head.³  Lewis claimed that he had neurosurgery “on or before he entered the plea” and as a result did not knowingly and voluntarily enter the plea.   In support of that argument, Lewis submitted a one-page excerpt of a February 28, 2002 Avenel medical chart referring to the neurosurgeries.   There was no expert report or contemporaneous records concerning the surgery.   The judge concluded that Lewis had failed to offer competent evidence that his medical condition at the time of the plea rendered him incapable of knowingly and voluntarily entering into the plea agreement.

This appeal followed.

II.

Lewis raises the following issues on appeal:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL FAILED TO ADVISE THE DEFENDANT THAT HE FACED THE POSSIBILITY OF BEING CIVILLY COMMITTED PURSUANT TO THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT (SVPA).

POINT II

DEFENDANT SHOULD BE AFFORDED THE OPPORTUNITY FOR A TRIAL AND HIS CONVICTION AND SENTENCE VACATED BECAUSE HE WAS NOT PROPERLY ADVISED ABOUT THE POSSIBILITY OF CIVIL COMMITMENT AFTER SERVING HIS SENTENCE.

POINT III

THE DEFENDANT WAS NOT MENTALLY COMPETENT TO ENTER INTO HIS GUILTY PLEA BECAUSE HE WAS UNDER THE INFLUENCE OF POWERFUL PRESCRIPTION MEDICATION USED TO PREVENT SEIZURES AS A RESULT OF MULTIPLE SURGERIES TO TREAT A BRAIN TUMOR AND SUBSEQUENT GUNSHOT WOUNDS TO HIS HEAD INFLICTED DURING A ROBBERY IN WHICH HE WAS A VICTIM.  (Partially Raised Below).

POINT IV

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF (PCR) COUNSEL BECAUSE COUNSEL FAILED TO PROVIDE THE LOWER COURT WITH APPROPRIATE MEDICAL RECORDS TO SUPPORT DEFENDANT'S CLAIM THAT HIS GUILTY PLEA WAS NOT MADE KNOWINGLY AND VOLUNTARILY BECAUSE OF A MEDICAL CONDITION.

POINT V

THE APPLICABILITY OF THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT (SVPA) TO THE DEFENDANT VIOLATES THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO LAWS BECAUSE THE DEFENDANT PLED GUILTY AND WAS SENTENCED BEFORE THE LAW TOOK EFFECT.

POINT VI

APPLICABILITY OF THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT (SVPA) TO THE DEFENDANT IS A DIRECT, RATHER THAN COLLATERAL, CONSEQUENCE OF HIS GUILTY PLEA.

POINT VII

REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.

“Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.”  State v. Preciose, 129 N.J. 451, 459 (1992).   Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law․ [;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

“A petitioner must establish the right to such relief by a preponderance of the credible evidence.”  Preciose, supra, 129 N.J. at 459.   To sustain that burden, specific facts which “provide the court with an adequate basis on which to rest its decision” must be articulated.  State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a);  Preciose, supra, 129 N.J. at 459-60.   Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing.  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).   Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion.  Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance.  Preciose, supra, 129 N.J. at 459-64.   In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant.  Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984).   Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient.   Ibid. Under the second prong, a defendant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.   The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome “ ‘a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.’ ”  Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693).   Further, because prejudice is not presumed, id. at 52, a defendant must demonstrate “how specific errors of counsel undermined the reliability” of the proceeding.   United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L. Ed.2d 657, 668 n.26 (1984).

Lewis contends that his attorney was ineffective because he failed to advise him of the possibility of civil commitment following completion of his sentence.   Although post-incarceration civil commitment under the SVP Act is not deemed penal, the Supreme Court held that “fundamental fairness” requires that a defendant subject to civil commitment be informed of the possible consequence of civil confinement for the remainder of his or her life when entering a plea.  State v. Bellamy, 178 N.J. 127, 138-39 (2003).  “The failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense under the Act is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea.”   Id. at 139 (citing R. 3:9-2) (emphasis added).

While the SVP Act itself was not specifically mentioned by name at either the plea or sentencing hearings, our review of the record reveals that Lewis was repeatedly informed of the potential consequence of his plea in terms of being civilly committed beyond his five-year term of incarceration.   Even if most of the information on that issue came from the plea judge, the fact remains that it was repeatedly explained to Lewis.   It is sufficient for either defendant's counsel or the trial court to inform defendant that civil commitment of an indefinite length of time is a potential consequence of a plea under the SVP Act. See Bellamy, supra, 178 N.J. at 139.   Lewis has failed to demonstrate that, but for counsel's ineffective assistance, he would not have entered into the plea agreement.  Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.

The record supports the motion judge's conclusion that Lewis was aware that he was subject to civil commitment when he pled guilty.   His plea was therefore “knowing and voluntary,” Bellamy, supra, 178 N.J. at 139, and it cannot be said that his trial counsel's performance was deficient.  Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

Having reviewed Lewis's remaining arguments on appeal in light of the record before us, we find them to be without merit and not warranting discussion in a written opinion.   R. 2:11-3(e)(2).   We make the following brief comments.

Lewis did not provide factual support for his claim of mental incapacity, even after the PCR judge granted additional time for PCR counsel to address that issue.   Lewis's claim that application of the SVP Act to him violates the ex post facto clause of the United States and New Jersey Constitutions is without merit.  In re Civil Commitment of W.X.C., _ N.J. _, _ (2010) (slip op. at 18-21).   In light of the exchanges in open court and the several plea forms highlighting the possibility of civil commitment following completion of Lewis's custodial sentence, no evidentiary hearing was required.

Affirmed.

FOOTNOTES

FN1. Although the State took the position that No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied to Lewis's situation, the judge advised Lewis that he would not impose a NERA sentence based upon his understanding of the law..  FN1. Although the State took the position that No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied to Lewis's situation, the judge advised Lewis that he would not impose a NERA sentence based upon his understanding of the law.

FN2. This was apparently a reference to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, which provides for civil commitment of sex offenders upon completion of a custodial sentence under certain circumstances..  FN2. This was apparently a reference to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, which provides for civil commitment of sex offenders upon completion of a custodial sentence under certain circumstances.

FN3. This medical claim was not included in Lewis's PCR 2007 pro se petition or in the supplemental submitted by his attorney in April 2008.   It was first raised at a conference status in June 2008.   It is not clear from the record when in 1999 Lewis was shot in the head or when he had his surgeries.   It appears that at least one of the surgeries related to the shooting occurred after the plea hearing on January 25, 1999.   The sentencing transcript of July 16, 1999, does not reference the shooting, but it does state that Lewis's most recent surgery was performed in June 1999.   He pled guilty on January 25, 1999.   The plea transcript makes no reference to brain surgery during the few weeks of January prior to the plea hearing..  FN3. This medical claim was not included in Lewis's PCR 2007 pro se petition or in the supplemental submitted by his attorney in April 2008.   It was first raised at a conference status in June 2008.   It is not clear from the record when in 1999 Lewis was shot in the head or when he had his surgeries.   It appears that at least one of the surgeries related to the shooting occurred after the plea hearing on January 25, 1999.   The sentencing transcript of July 16, 1999, does not reference the shooting, but it does state that Lewis's most recent surgery was performed in June 1999.   He pled guilty on January 25, 1999.   The plea transcript makes no reference to brain surgery during the few weeks of January prior to the plea hearing.

PER CURIAM