NANTICOKE LENNI-LENAPE TRIBAL NATION VS. JOHN J. HOFFMAN, ETC. (L-2343-15, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-2576-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL JONES,
Defendant-Appellant.
Submitted March 22, 2017 – Decided April 7, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 98-10-4330.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Andrew R.
Burroughs, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Michael Jones appeals from an October 15, 2015 Law
Division order denying his petition for post-conviction relief
(PCR) without an evidentiary hearing. We affirm.
Defendant was charged in Essex County Indictment No. 98-10-
4330 with first-degree attempted murder, N.J.S.A. 2C:11-3 and
N.J.S.A. 2C:5-1 (count one); first-degree kidnapping, N.J.S.A.
2C:13-1b(1) (count two); three counts of first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2a(4) (counts three, four, and
five); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1)
(count six); third-degree criminal restraint, N.J.S.A. 2C:13-2
(count seven); first-degree armed robbery, N.J.S.A. 2C:15-1 (count
eight); third-degree terroristic threats, N.J.S.A. 2C:12-3b (count
nine); fourth-degree unlawful possession of a weapon (knife),
N.J.S.A. 2C:39-5d (count ten); and third-degree possession of a
weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count
eleven). Defendant was charged separately in Indictment No. 98-
10-4331 with fourth-degree possession of a weapon by a convicted
felon, N.J.S.A. 2C:39-7a. Defendant was also charged in Essex
County Accusation No. 99-05-0619 with third-degree terroristic
threats, N.J.S.A. 2C:12-3.
Defendant pled guilty to all charges on May 17, 1999. During
the plea colloquy, defendant was expressly advised by the judge,
and acknowledged he understood, that he would be subject to Megan's
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Law and community supervision for life (CSL) by virtue of his
guilty plea.¹ Additionally, defendant responded "[y]es" when asked
by the judge whether he understood that "[i]f incarcerated as a
repetitive and compulsive sexual offender, you may be subject to
. . . involuntary commitment following the expiration of your
sentence[?]"² The judge accepted the guilty plea after finding
defendant entered it knowingly, freely, and voluntarily.
Prior to sentencing, defendant was evaluated at the Adult
Diagnostic and Treatment Center (ADTC) in Avenel. The evaluator
concluded that, pursuant to the New Jersey Sex Offender Act,
N.J.S.A. 2C:47-3, defendant was eligible to be sentenced to the
ADTC for specialized sex offender therapy.
¹
"Megan's Law", L. 1994, c. 127-34, 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:43-6.4 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 these crimes before the revisions were
enacted, he remains under the former designation, community
supervision for life. N.J.A.C. 10A:71-6.11(a).
²
Although the record appears to indicate that the plea forms
signed by defendant similarly advised him of the Megan's Law and
CSL consequences of his plea, and his potential exposure to civil
commitment upon completion of his sentence, the plea forms are not
included in defendant's appendix.
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On February 25, 2000, defendant was sentenced to an aggregate
fifteen-year prison term, subject to an eighty-five percent period
of parole ineligibility pursuant to the No Early Release Act,
N.J.S.A. 2C:43-7.2. The judgment of conviction specified that
defendant was to serve the final five years of his sentence at the
ADTC. Defendant was also sentenced to CSL and ordered to comply
with the requirements of Megan's Law. Defendant did not file a
direct appeal from his conviction or sentence.
In May 2011, following the completion of his custodial
sentence, defendant was civilly committed to the Special Treatment
Unit pursuant to the New Jersey Sexually Violent Predator Act
(SVPA), N.J.S.A. 30:4-27.24 to -27.38. On September 24, 2014,
defendant filed a pro se petition for PCR. After counsel was
appointed, defendant filed a certification dated July 9, 2015, in
which he averred that his attorney did not inform him of the
potential for civil commitment under the SVPA as a consequence of
his guilty plea.
The sentencing judge having retired, the matter was assigned
to another judge who conducted oral argument on September 17,
2015. At that hearing, defendant withdrew all claims asserted in
his PCR petition except for a single argument that his due process
rights had been violated. Specifically, he contended the terms
of his plea agreement and the court's CSL sentence were
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circumvented by virtue of his civil commitment. Defendant did not
seek to withdraw his guilty plea. Instead, he requested that the
PCR court vacate his civil commitment to "remedy the injustice."
On October 15, 2015, the PCR judge rejected defendant's
argument and denied the petition. In her oral opinion, the judge
concluded there was no due process violation because defendant was
specifically told during the plea colloquy he was subject to
potential civil commitment after serving his custodial sentence.
The judge further found no legal basis to conclude that imposition
of civil commitment following a custodial sentence circumvents
that sentence or the plea agreement.
Defendant appeals from the court's denial of his petition and
presents the following issue for our review:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED AND THE DEFENDANT RELEASED
FROM CUSTODY BECAUSE A SENTENCE OF COMMUNITY
SUPERVISION FOR LIFE IMPOSED PURSUANT TO
MEGAN'S LAW PREEMPTS A CIVIL COMMITMENT UNDER
THE SEXUALLY VIOLENT PREDATOR ACT.
We reject this argument as without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We affirm the
denial of defendant's petition substantially for the reasons set
forth in the judge's October 15, 2015 cogent oral opinion. We add
the following brief comments.
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We recognize that the potential for civil commitment may be
of such great consequence that the failure to disclose it to a
defendant may justify allowing the defendant to withdraw his or
her plea. State v. Bellamy, 178 N.J. 127, 140 (2003). Although
Bellamy had not yet been decided when defendant entered his guilty
plea in the present case, the trial judge adroitly anticipated the
Court's decision and ensured that defendant was aware he could be
civilly committed at the conclusion of his penal sentence. At the
plea hearing, defendant testified he understood he could be subject
to both CSL and civil commitment. Any claim to the contrary is
clearly belied by the record.
Importantly, defendant does not seek to withdraw his guilty
plea and stand trial on the panoply of original charges contained
in the indictments and accusation. Rather, in essence, he seeks
to vacate his order of civil commitment. We conclude that such
remedy is not available to defendant on PCR, which affords relief
only from a judgment of conviction. See Rules 3:22-1 to -3.
Parenthetically, while not the situation here, we note that the
authority to seek civil commitment cannot be negotiated away by
plea agreement. See In re Commitment of P.C., 349 N.J. Super.
569, 578 (App. Div. 2002).
Finally, defendant presents no controlling authority for his
position that his civil commitment under the SVPA is preempted by
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a sentence of CSL under Megan's Law. To the contrary, as the
State correctly points out, it is well-established that "the
Legislature is presumed to be aware of judicial construction of
its enactments[.]" DiProspero v. Penn, 183 N.J. 477, 494 (2005)
(quoting N.J. Democratic Party, Inc. v. Samson, 175 N.J. 178, 195
n.6 (2002)). Accordingly, it may reasonably be assumed that the
Legislature is fully cognizant that defendants have been sentenced
to CSL when convicted of sexual offenses and thereafter civilly
committed pursuant to the SVPA when they continue to represent a
danger to the public. The failure to amend this statutory
framework thus signals the Legislature's acquiescence in its
practical application. See Macedo v. Dello Russo, 178 N.J. 340,
346 (2004).
Affirmed.
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