STATE OF NEW JERSEY VS. J.B. (00-06-0462, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3229-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.B.,
Defendant-Appellant.
__________________________________________
Submitted June 1, 2017 – Decided June 19, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 00-06-0462.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Scott A. Coffina, Burlington County
Prosecutor, attorney for respondent
(Jennifer Paszkiewicz, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant J.B. appeals from an October 23, 2015 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. For the reasons that follow, we affirm.
I
In 1999, defendant was stopped by the police because of an
outstanding traffic warrant. A search of his car revealed one
hundred photographs of bound and gagged males between the ages
of fifteen and twenty-two. The men were arranged in poses, and
some were blindfolded. After receiving Miranda warnings,
defendant confessed he took the photographs, but claimed every
person photographed did so willingly.1 Defendant admitted his
bondage activities were "sex related," but denied having sex
with any of those photographed. Taped to some of the
photographs were locks of hair taken from the person pictured.
Defendant referred to these pictures as his "trophies."
After being charged with three counts of third-degree
luring and enticing a child, N.J.S.A. 2C:13-6, three counts of
fourth-degree harassment, N.J.S.A. 2C:33-4(c) and (e), and one
count of fourth-degree contempt, N.J.S.A. 2C:29-9(a), defendant
contacted one of the boys he photographed and urged him to not
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
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testify against him. Defendant was then charged with tampering
with a witness, N.J.S.A. 2C:28-5(a)(1).
Because the police seized the photographs without a
warrant, defendant's motion to suppress the pictures was
granted. Before the motion was granted, the police identified
and interviewed A.V., one of the underage males defendant
photographed. A.V. reported he borrowed ten dollars from
defendant and agreed to allow defendant to tie him up to pay off
his debt. Defendant tied him up and blindfolded him with duct
tape, and told A.V. if he tried to talk, defendant would gag
him. Police also spoke with D.F. and T.D., who reported
defendant tied them up as well.
After the photographs were suppressed, all but the
tampering and contempt charge were dismissed. In January 2002,
defendant pled guilty to the tampering charge, in exchange for
the dismissal of the contempt charge and another indictment, in
which defendant was charged with luring and enticing a child, as
well as endangering the welfare of a child. Defendant was
sentenced to a five-year term of imprisonment. Defendant did
not file a direct appeal from his conviction and sentence.
Before his release from prison, in 2004, the State
successfully petitioned the court for defendants civil
commitment under the Sexually Violent Predator Act (SVPA),
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N.J.S.A. 30:4-27.24 to -27.38. In a lengthy, comprehensive
opinion, the court found defendant committed four "sexually
violent offenses" as defined by N.J.S.A. 30:4-27.26(b),
warranting commitment to the Special Treatment Unit. N.J.S.A.
30:4-27.26(b) states a sexually violent offense can be "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." Ibid.Three of the sexually violent offenses occurred before the
discovery of and were unrelated to the photographs discovered in
defendant's car.2 The court found the fourth sexually violent
offense was putting young men, including underage males, in
bondage, as evidenced by the subject photographs. The court
acknowledged tampering with a witness is not a sexually violent
offense, but placing underage males, who cannot render consent,
in bondage was, noting the photographs defendant took of those
he put in bondage "would do credit to the Marquis de Sade." The
court further noted:
2
Accounts of the other three offenses are detailed in our
opinion affirming the commitment court, In re Civil Commitment
of J.M.B., 395 N.J. Super. 69, 76-82 (App. Div. 2007), and the
Supreme Court's opinion affirming our opinion. In re Commitment
of J.M.B., 197 N.J. 563, 579-86 (2009).
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The [defendant] in the interview with Dr.
Zeiguer admitted . . . bondage was his
sexual preference. It was a sexual thing.
. . .
[Dr. Reeves] conclude[d] "[J.B.] is a sexual
sadist." He bases this diagnosis on the
established pattern of criminal offenses and
the statements of [J.B.] himself.
[Defendant] has acknowledged that he is
sexually aroused by the bondage of his
subjects.
[Defendant] also is sexually excited
according to Dr. Reeves by the humiliation
his victims endure when he cuts their hair.
And by the fear his victims suffer when he
ties them up.
Although the photographs were suppressed in the criminal
matter, the court observed they were admissible in the civil
commitment action, enabling the mental health witnesses to
testify about the photographs and how they show defendant's
"predilections" and "sexual deviancy." The court also noted
defendant had a "continuing interest" in the photographs after
they were turned over to the State, as exhibited by his motion
to retrieve the photographs after the motion to suppress was
granted. The court stated, "He not only wanted his pictures
back but he wanted the locks of hair which he had collected from
the victims, as well, demonstrating a continuing interest in
matters of this sort."
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We affirmed the trial court, see In re Civil Commitment of
J.M.B., 395 N.J. Super. 69 (App. Div. 2007), and we were
affirmed by the Supreme Court. In re Commitment of J.M.B., 197
N.J. 563 (2009), cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175
L. Ed. 2d 361 (2009).
In 2006, defendant filed a PCR petition. He claimed plea
counsel had been ineffective for failing to advise him he could
be civilly committed under the SVPA if he pled to witness
tampering. On March 30, 2007, the PCR court denied defendant's
petition without prejudice, because the trial court's order
civilly committing defendant was pending appeal. Defendant
filed a notice of appeal challenging the PCR court's decision to
deny his petition without prejudice, but later withdrew that
appeal.
In July 2008, defendant filed a second PCR petition. On
November 15, 2010, the PCR court denied this petition without
prejudice because, although the New Jersey Supreme Court had
issued its opinion, another petition defendant filed for
certification to the Court was pending.
On April 5, 2011, the PCR court again denied without
prejudice defendant's second PCR petition, because defendant "is
currently involved in pursing the civil commitment matter
through both the State and Federal Court systems[.]" However,
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the April 5, 2011 order provided defendant could reinstate his
petition within thirty days "after all Court proceedings
involving the civil commitment have been concluded."
A federal habeas corpus application defendant filed was
denied on June 20, 2012, concluding all challenges to the
decision to civilly commit him. However, he did not re-file his
second PCR petition until November 2014. Attached to his brief
is a certification from a public defender who admitted
forgetting, or advising the pool attorney to whom this matter
was assigned, to refile the second petition within the thirty
day deadline mandated by the April 5, 2011 order.
In his pro se brief filed in support of his second PCR
petition, defendant complained that, before he pled to witness
tampering, both the plea court and plea counsel failed to advise
him there was a "potential possibility" he would be civilly
committed under N.J.S.A. 30:4-27.26(b). His argument was not
well articulated, but he seemingly asserts the plea to witness
tampering provided a basis for the commitment court to examine
during the commitment hearing the factual circumstances that
culminated in this particular plea, and to conclude defendant
had engaged in sexually violent acts with underage boys.
Defendant claims had he known of this potential, he would not
have pled guilty to witness tampering.
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On October 23, 2015, the PCR court found the relief
defendant sought procedurally barred as untimely; the court did
not cite the specific authority under which it ruled. The court
also rejected the petition on substantive grounds, determining
the holding in State v. Bellamy, 178 N.J. 127 (2003), precluded
plaintiff from relief.
II
On appeal, defendant presents the following issues for our
consideration:
POINT I: THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED BECAUSE,
REGARDLESS OF WHETHER TRIAL COUNSEL WAS
INEFFECTIVE UNDER THE STRICKLAND TEST,
DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS
RIGHT TO BE CORRECTLY INFORMED OF ALL
RELEVANT CONSEQUENCES OF HIS GUILTY PLEA
DIRECTLY BY THE TRIAL COURT WAS VIOLATED.
POINT II: THE ORDER DENYING POST-CONVICTION
RELIEF SHOULD BE REVERSED AND THE MATTER
REMANDED FOR AN EVIDENTIARY HEARING BECAUSE
DEFENDANT MADE A PRIMA FACIE SHOWING OF
INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III: THE PCR COURT'S RULINGS VIOLATED
DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.
POINT IV: THE PCR COURT MISAPPLIED ITS
DISCRETION IN APPLYING THE PROCEDURAL BARS
OF R. 3:22-5 AND R. 3:22-12.
We first address defendant's substantive contention plea
counsel was ineffective for failing to advise his guilty plea
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may lead to a finding he had engaged in a sexually violent
offense, requiring commitment.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was
formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court
in State v. Fritz, 105 N.J. 42 (l987). In general, in order to
prevail on a claim of ineffective assistance of counsel,
defendant must meet the following two-prong test: (l) counsel
made errors so egregious he or she was not functioning
effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the errors prejudiced defendant's
rights to a fair trial such that there exists a "reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
Strickland, supra, 466 U.S. at 694, l04 S. Ct. at 2068, 80 L.
Ed. 2d at 698.
However, if seeking to set aside a guilty plea based on
ineffective assistance of counsel, the second prong a defendant
must meet is "there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pled guilty and
would have insisted on going to trial." State v. Nuñez-Valdéz,
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200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J.
434, 457 (1994)). Here, defendant failed to meet both prongs.
As for the first prong, in Bellamy, the Supreme Court did
hold a defendant exposed to the possibility of commitment under
the SVPA as a result of a guilty plea must be so advised at the
time of the plea by either the court or counsel. Bellamy,
supra, 178 N.J. at 139. The holding was based on "fundamental
fairness," not upon the premise the consequences were considered
"direct" or "penal." Ibid.However, the obligation imposed by Bellamy was given only
limited retrospective effect. Id. at 140. The Court made the
case retroactive to only those cases on direct appeal. Id. at
142-43. That is, the Court gave the holding "pipeline"
retroactivity only. Here, defendant was sentenced in April
2002; he did not file a direct appeal after he was sentenced.
Accordingly, Bellamy's holding provides no support for his
argument counsel was ineffective.
Second, defendant does not clarify why he would have
rejected the subject plea and instead insisted on going to trial
had he known there was a potential the State would seek to have
him committed if he pled guilty. If he had gone to trial, he
would have had to defend himself against not only the witness
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tampering charge, but also other charges, including a charge in
another indictment for luring and enticing a child.
But more important, even if he prevailed at trial, the
State was still free to seek his civil commitment. There were
other acts found to be sexually violent offenses that led to the
commitment court's conclusion defendant's commitment was
warranted. Defendant does not address this other significant
evidence.
Satisfied from our review of the record defendant failed to
make a prima facie showing of ineffectiveness of trial counsel
within the Strickland-Fritz test, we conclude the PCR court
correctly determined an evidentiary hearing was not warranted.
See State v. Preciose, 129 N.J. 451, 462-63 (1992).
As for defendant's contention the plea court erred when it
failed to advise defendant at the time of his plea he may be
civilly committed under the SVPA, first, defendant was required
to assert such contention on direct appeal. Second, the reasons
we reject defendant's claim counsel was ineffective for failing
to render this advice at the time of the plea apply as well to
his argument the court similarly erred.
Because of our disposition, it is unnecessary to address
whether defendant's second petition was time-barred.
Affirmed.
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