State of New Jersey v. William Smullen

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0722-12T4

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION

Plaintiff-Respondent, August 15, 2014

v. APPELLATE DIVISION

WILLIAM SMULLEN,

Defendant-Appellant.

_____________________________________

Submitted October 17, 2013 – Decided August 15, 2014

Before Judges Fuentes, Fasciale and Haas.

On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment
No. 03-07-0411.

Robert A. Warmington, attorney for
appellant.

Geoffrey D. Soriano, Somerset County
Prosecutor, attorney for respondent (James
L. McConnell, Assistant Prosecutor, of
counsel; Cameron MacLeod, on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

On November 14, 2003, defendant William Smullen pled guilty

pursuant to a negotiated plea agreement with the Somerset County

Prosecutor's Office to two counts of second degree sexual

assault, N.J.S.A. 2C:14-2c(4), based on having consensual sexual
intercourse on two separate occasions with a fifteen-year-old

girl. Defendant was twenty-three years old at the time and a

lifelong resident of the State of New York. As a mandatory part

of this plea agreement, defendant would also be placed on

community supervision for life pursuant to N.J.S.A. 2C:43-6.4.

Because defendant travelled from New York to this state to

engage in these sexual encounters, he was also charged by the

United States Attorney's Office with the federal offense of

"Coercion or enticement of a minor female," in violation of 18

U.S.C.A. § 2422. Under the plea agreement, the State agreed to

recommend that the custodial part of the sentence imposed by the

Superior Court should run concurrent with the sentence imposed

by the United States District Court of New Jersey.

On April 23, 2004, the District Court sentenced defendant

to serve a term of forty-six months in federal prison. On

October 26, 2006, the Superior Court in Somerset County found

sufficient grounds to sentence defendant within the third degree

range and imposed a term of imprisonment of three years.1

1
Because defendant pled guilty to a second degree offense, he
was subject to a term of imprisonment of between five to ten
years. N.J.S.A. 2C:43-6a(2). Exercising the discretionary
authority conferred in N.J.S.A. 2C:44-1f(2), which requires the
court to find the mitigating factors preponderate over the
aggravating factors, State v. Balfour, 135 N.J. 30, 35 (1994),
the judge decided to sentence defendant to a degree lower,
(continued)

2 A-0722-12T4
Consistent with the plea agreement, the court ordered that this

sentence run concurrent with the sentence imposed by the federal

court. The court also placed defendant on community supervision

for life, as provided for in N.J.S.A. 2C:43-6.4. Defendant did

not file a direct appeal challenging any part of his conviction

or sentence.

Despite some discrepancy in the record,2 the post-conviction

relief (PCR) court found defendant timely filed a petition

seeking PCR pursuant to Rule 3:22-2(a), alleging a denial of his

Sixth Amendment right to effective assistance of counsel.

Defendant claims he was compelled to plead guilty without being

given sufficient time to review with his attorney the

information provided by the court concerning the requirements

and ramifications of being placed on community supervision for

life under N.J.S.A. 2C:43-6.4. The record of the plea hearing

(continued)
within a range of no less than three nor more than five years of
imprisonment. N.J.S.A. 2C:43-6a(3).
2
Appellate counsel indicates in his brief before us that
defendant filed this PCR petition on May 4, 2012. Citing the
time restrictions in Rule 3:22-12(a)(1), the PCR court
specifically found defendant's petition was timely "because the
Petitioner was sentenced on October 26, 2006 and filed his
Petition for Post-Conviction Relief on or about September 27,
2011, just before the five year statute of limitations ran."
The State does not dispute the PCR court's findings in this
respect.

3 A-0722-12T4
reflects the trial judge gave defendant a ten-page document,3

allegedly summarizing the requirements of community supervision

for life, and directed defense counsel to review the document

with defendant over the court's one-hour lunch recess.

Defendant also claims he was denied effective

representation of counsel because his attorney did not discuss

with him the specific requirements under N.J.S.A. 2C:43-6.4

during plea negotiations, including whether, as a New York

resident, he would be subject to different or additional

restrictions upon completion of his custodial sentence.

Defendant submitted a certification in which he attests that he

only expected "to submit to the specific registration guidelines

of the particular version of 'Megan's Law[4]' in effect in the

state where I would be residing upon my release (New York)."

However, his attorney was totally unaware of the restrictions

imposed by New York.

The PCR court denied defendant's petition without

conducting an evidentiary hearing. The court held:

3
Defendant did not produce this ten-page document in support of
his PCR petition, and neither the prosecutor nor the court have
a copy of it in their files.
4
Although not an issue in this case, we pause to note the common
misconception of referring to community supervision for life
under N.J.S.A. 2C:43-6.4 as a "Megan's Law" requirement. The
requirements imposed under what is commonly referred to as
"Megan's Law" are codified under N.J.S.A. 2C:7-1 to -19.

4 A-0722-12T4
 It would be overly onerous on both the
defense attorney and the Court to be
required to advise Petitioner[s] of the
community supervision for life provisions
applicable in other states on the chance
that a Petitioner might choose to reside in
that state and was permitted to under the
provisions of the New Jersey community
supervision for life.

Defendant now appeals raising the following argument:

POINT I

THE DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE HE WAS NOT
PROPERLY ADVISED REGARDING THE CONSEQUENCES
OF COMMUNITY SUPERVISION FOR LIFE, INCLUDING
THE ELECTRONIC MONITORING PROGRAM, BEFORE
AND DURING HIS PLEA, AND MUST THEREFORE BE
ALLOWED TO WITHDRAW HIS PLEA.

We agree with defendant and reverse. As a threshold issue,

defendant was a lifelong New York resident at the time he pled

guilty. Thus, the PCR court's concern about the potential

"onerous" burden it would place on defense counsel and the trial

judge "to be required to advise [a defendant] of the community

supervision for life provisions applicable in other states on

the chance that a Petitioner might choose to reside in that

state" is not an accurate characterization of the salient facts

in this case. (Emphasis added). The record shows that defense

counsel, the prosecutor, and the trial judge were all aware that

defendant was a lifelong resident of New York, that he expected

to return to his home state once he completed the custodial part

5 A-0722-12T4
of his sentence, and that he expressed particular concern about

the New York implications of his New Jersey conviction.

It is undisputed that at the time of the plea hearing,

defense counsel was not aware of New Jersey's community

supervision requirement. It was the trial judge who introduced

the topic and made the following prescient statement:

There's now a publication coming out from
parole to describe what community
supervision for life is. So in order to
avoid any PCR's at a later date, indicating
I didn't know what community supervision for
life is, and I'm going to give you [defense
counsel] a copy and you can go over with
your client, and I'll get it on record
you've reviewed it and that will not be a
problem in the future. So I'll hold this
and take care of another case before we
break for lunch.

The following colloquy took place after the court's lunch

recess:

THE COURT: We're back on the William
Smullen case. Let me start off, we already
have counsel's appearance on this. We got
you on record on that one.

[Defense counsel thereafter re-announces his
appearance on behalf of defendant.]

THE COURT: And [defense counsel], I take it
you've had a chance to review with Mr.
Smullen what exactly is meant by community
supervision for life.

[DEFENSE COUNSEL]: Yes, I have, your Honor,

THE COURT: And in fact, the Court has, I
believe, given you a ten-page form you've

6 A-0722-12T4
received from the Department of Corrections
outlining under the Administrative Code
section 10A:71-6.11 as to what is community
supervision for life. And you've reviewed
that with your client?

[DEFENSE COUNSEL]: Yes, we've reviewed it.

THE COURT: Is that so, Mr. Smullen, you've
reviewed that community supervision for life
provision?

THE DEFENDANT: Yes, I did.

THE COURT: You understand it completely?

THE DEFENDANT: Yes, I do.

THE COURT: And you want to proceed with the
sentence?

THE DEFENDANT: Yes.

THE COURT: And it may [a]ffect where you
live, do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: There's a provision in there
about supervision by the Department of
Corrections in New Jersey; do you understand
that?

THE DEFENDANT: Yes.

THE COURT: And you want to go ahead with
the plea bargain anyway?

THE DEFENDANT: Yes, I do. One question, my
residence is in New York.

THE COURT: Well, it has a provision in
there about their supervision about where
you live. It may not be at your discretion,
it may be at their discretion. So yeah, it

7 A-0722-12T4
 may [a]ffect, yes, it may [a]ffect your
ability to live in New York.

THE COURT: What do you want to do? You
want to continue to live in New York or not?
As I sit here today, I have no idea what
they're going to say, I just want to make
sure you understand you run the risk if they
decide you have to stay in New Jersey, you
have to stay in New Jersey where they can
watch you more closely, do you understand
that?

THE DEFENDANT: Yes.

THE COURT: But understanding that you want
to go ahead with the plea?

THE DEFENDANT: Yes.

THE COURT: [Addressing defense counsel]
Anything else counsel?

[DEFENSE COUNSEL]: I don't believe so, your
Honor.

In support of his PCR petition, defendant certified that

during the lunch recess his attorney requested the prosecutor to

agree "to a postponement, of at least one day, to allow me to

have additional time to adequately review and consider [the

community supervision for life] conditions, as well as the

implications attendant to them." According to defendant, his

counsel said the prosecutor "rebuffed this request and stated

that his office would immediately withdraw the 5-year flat5

5
The term "flat," in the context of a custodial state prison
term, is a colloquialism used by lawyers for a term of
(continued)

8 A-0722-12T4
offer, and increase it to a '7-year flat' offer if [defendant]

did not enter my guilty plea that afternoon."

We review a claim of ineffective assistance of counsel

under the two-prong test established by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by

our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

First, defendant must demonstrate that defense counsel's

performance was deficient. Strickland, supra, 466 U.S. at 687,

104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show

there exists "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.

In determining a claim of ineffective assistance of counsel

in a case in which a defendant pled guilty, "the issue is

whether it is ineffective assistance of counsel for counsel to

provide misleading, material information that results in an

uninformed plea, and whether that occurred here." State v.

Nunez-Valdez, 200 N.J. 129, 139-40 (2009). Community

supervision for life under N.J.S.A. 2C:43-6.4 has long been

(continued)
imprisonment without any minimum mandatory term of parole
ineligibility.

9 A-0722-12T4
considered a punitive consequence of a criminal sentence. State

v. Schubert, 212 N.J. 295, 308 (2012) (citing State ex rel.

B.P.C., 421 N.J. Super. 329, 354 (App. Div. 2011); State v.

Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003)). A

defendant pleading guilty to an offense triggering the

requirements of community supervision for life is entitled to

expect his attorney to provide him with complete and accurate

information concerning the ramifications of this material aspect

of a plea agreement. State v. Agathis, 424 N.J. Super. 16, 23

(App. Div. 2012).

Based on the evidence presented before the PCR court,

defendant established a prima facie case of ineffective

assistance of counsel and was therefore entitled to an

evidentiary hearing pursuant to Rule 3:22-10(b). State v.

Preciose, 129 N.J. 451, 462-63 (1992). Defense counsel was

entirely uninformed at the plea hearing about the particular

requirements of community supervision for life. But for the

trial court's impromptu intervention, this issue would have been

completely unaddressed. The court's attempt to cure this

deficiency by giving defense counsel a one-hour lunch recess to

familiarize himself with these requirements, and thereafter

provide meaningful, professionally sound advice to defendant on

10 A-0722-12T4
the implications of the community supervision for life

requirements, was patently inadequate.

Even more relevant from defendant's perspective, neither

the court nor his attorney provided him with any information

about how these restrictions would apply in his home state of

New York. We expect a reasonably competent New Jersey attorney

to be able to research New York law and make at least a

preliminary determination of his or her ability to advise a

client about the New York ramifications of pleading guilty to a

crime in New Jersey. If after researching New York law, counsel

believes he or she is not competent to offer professionally

sound advice to the client, then it is counsel's responsibility

to consult with, or refer the client to, an attorney who can do

so. Leaving the client uninformed about this vital aspect of

his decision to accept or reject the State's plea offer is not

an option.

In the interest of clarity, we emphasize that defense

counsel's subpar legal performance here satisfies the first

prong under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at

2064, 80 L. Ed. 2d at 693, and falls within the paradigm

articulated by the Court in Nunez-Valdez, supra, 200 N.J. at

138. Counsel should have been aware of the penal consequences

defendant was facing under N.J.S.A. 2C:43-6.4, as well as how

11 A-0722-12T4
they would affect defendant as a New York resident, before

engaging in plea negotiations with the State. This is not a

case involving the retroactive application of a new rule of law.

Cf. Chaidez v United States, 568 U.S. __, 133 S. Ct 1103, 185

L. Ed. 2d 149 (2013); State v. Gaitan, 209 N.J. 339 (2012),

cert. denied, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

We thus remand this matter for the PCR judge to determine

whether "'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.'" Nunez-Valdez, supra,

200 N.J. at 138 (quoting State v. DiFrisco, 137 N.J. 434, 457

(1994)).

Reversed and remanded.

12 A-0722-12T4