STATE OF NEW JERSEY VS. MICHAEL LYGA(08-02-0195, MORRIS COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

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NOT FOR PUBLICATION WITHOUT THE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-3633-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL LYGA,
Defendant-Appellant.
________________________________________________________________
Submitted June 6, 2017 – Decided July 18, 2017
Before Judges Rothstadt and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment No. 08-02-0195.
Joseph E. Krakora, Public Defender, attorney
for appellant (Janet A. Allegro, Designated
Counsel, on the briefs).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Thomas C. Schmid,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Michael Lyga appeals from the denial of his petition
for post-conviction relief (PCR), without an evidentiary hearing,
because the petition was time-barred. He contends that his trial
counsel failed to advise him of the conditions of parole
supervision for life (PSL), N.J.S.A. 2C:43-6.4, and the
consequences of violating them, and that he filed his petition as
soon as he determined the "true nature" of PSL. For the reasons
that follow, we affirm.
Defendant waived indictment and pled guilty to second-degree
child luring, N.J.S.A. 2C:13-6, and obstruction, N.J.S.A. 2C:29-
1(b). On October 16, 2008, the sentencing court imposed an
aggregate sentence of five years subject to Megan's Law conditions,
N.J.S.A. 2C:7-1 to -11, and PSL. The facts underlying defendant's
convictions need not be recounted here for our purposes.
Defendant filed an unsuccessful motion for reconsideration
of his sentence and then a direct appeal, arguing only that his
sentence was excessive. An Excessive Sentence panel of this court
affirmed his sentence. State v. Lyga, No. A-5002-08 (App. Div.
March 11, 2010).
Defendant was paroled in 2012 and subjected to the terms of
PSL. At that time, he received forms with written information
about those terms but refused to execute them. He subsequently
failed to comply with the terms of his parole, and, as a result,
it was revoked in August 2012. After a hearing, he was re-
incarcerated for one year.
Defendant filed motions with the Law Division for various
relief. On April 5, 2013, he filed a motion denoted as a PCR
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petition, seeking a change of custody to a drug treatment program
and then on April 18, 2013, a motion to withdraw his plea. The
first motion was evidently either denied or never decided1 and the
latter was denied on August 1, 2014. He appealed and a different
Excessive Sentence panel affirmed the denial of his motion. See
State v. Lyga, Docket No. A-000194-14 (App. Div. Dec. 4, 2014).
The Supreme Court denied defendant's petition for certification.
State v. Lyga, 222 N.J. 18 (2015).
In 2014, defendant was again paroled, received the PSL forms,
which he signed, and again proceeded to violate his parole. His
parole was revoked and he was again re-incarcerated in March 2014
and, after another hearing, was subjected to a fourteen-month term
for his parole violation.
Defendant filed the PCR petition that is the subject of this
appeal on January 2, 20152, seeking to terminate his PSL. In his
pro se PCR petition, defendant argued that at the time he pled
guilty, he was not informed that he could be re-incarcerated for
a violation of PSL. In supplemental submissions, he challenged
the existence of any evidence of his crimes, contended that he was
1
The record does not contain an order indicating the disposition
of the motion. We assume that the motion was denied, if it was
ever heard, based upon defendant's continued incarceration.
2
The petition that defendant signed on December 23, 2014 is
erroneously stamped filed January 2, 2014.
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arrested without probable cause and further elaborated upon his
argument that he received ineffective assistance of counsel
because he was not informed of the consequences of PSL, claiming
that had he been properly informed he would not have pled guilty.
Defendant further explained he was not aware "that [he] had to
file a petition for [PCR] within five years[, and a]s soon as [he]
understood the true nature of [PSL, he] immediately filed this
PCR."
Designated counsel filed a memorandum of law in further
support of defendant's contentions. In the submission, counsel
argued that defendant received ineffective assistance of counsel
because he was not informed of the consequences of PSL, trial
counsel failed to argue for a lesser sentence "because [PSL] has
been ineffective for [defendant]," and defendant was arrested
without probable cause. Counsel further contended that defendant
established a prima facie claim of PCR entitling him to an
evidentiary hearing and that the petition was not procedurally
barred.
Judge Stephen J. Taylor denied defendant's petition by order
dated February 4, 2016, placing his reasons on the record on the
same date. Judge Taylor treated defendant's petition as his first
PCR application, despite defendant's earlier post-conviction
motions. Turning to Rule 3:22-12(a)(1), the judge determined that
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defendant's petition was filed well outside the five-year period
required by the Rule and found that defendant failed to establish
excusable neglect for filing the petition out of time. Judge
Taylor concluded that the record established that he was informed
of the conditions of PSL and consequences of violating its
requirements at his plea hearing, in his signed plea forms, and
on the dates of his being paroled. The judge observed that
defendant also confirmed his understanding of PSL in his earlier
motion seeking to withdraw his plea in which he argued against
being subjected to its conditions. Finally, the judge stated that
even if he found excusable neglect, based upon the observations
he already made about the record and defendant's acknowledgments
of the terms of his PSL, defendant failed to establish any
"fundamental injustice" as defendant "was fully advised of the
direct and penal consequences of his plea, during . . . the plea
colloquy."
Defendant presents the following issues for our consideration
in his appeal.
POINT I
THE COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE EFFECTIVE LEGAL
REPRESENTATION AT SENTENCING.
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A. THE PREVAILING LEGAL
PRINCIPLES REGARDING CLAIMS OF
INEFFECTIVE ASSISTANCE OF COUNSEL
ARISING OUT OF THE ENTRY OF GUILTY
PLEAS, EVIDENTIARY HEARING AND
PETITIONS FOR POST[-]CONVICTION
RELIEF.
POINT II
TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO PROPERLY EXPLAIN THE
CONSEQUENCES OF PAROLE SUPERVISION
FOR LIFE, IN PARTICULAR, THE EXTENT
AND INVASIVE NATURE OF POSSIBLE
ADDED CONDITIONS THROUGHOUT THE
ENTIRE PERIOD OF SUPERVISION.
POINT III
THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF ON PROCEDURAL
GROUNDS.
A. DEFENDANT'S CLAIMS ARE
NOT PROCEDURALLY BARRED BY R. 3:22-
12(a).
B. DEFENDANT'S CLAIMS ARE
NOT PROCEDURALLY BARRED BY R. 3:22-
5.
We are not persuaded by any of these arguments, and we find
them to be without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2). We affirm substantially for
the reasons expressed by Judge Taylor in his compressive oral
decision.
Affirmed.
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