STATE OF NEW JERSEY VS. A.L. (10-06-1887 AND 06-01-0353, CAMDEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4692-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.L.,

Defendant-Appellant.
___________________________

Submitted June 5, 2018 – Decided July 6, 2018

Before Judges Hoffman and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
10-06-1887 and 06-01-0353.

Joseph E. Krakora, Public Defender, attorney
for appellant (Steven E. Braun, Designated
Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Natalie A. Schmid
Drummond, Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM
 Defendant A.L. appeals from an April 13, 2017 order denying

his petition for post-conviction relief (PCR) following an

evidentiary hearing. We affirm.

In 2006, defendant was indicted and charged with seventeen

crimes related to alleged sexual assaults of a fifteen-year-old

female. The charges included multiple counts of first-degree

aggravated sexual assault and first-degree kidnapping. Defendant

pled guilty to one count of second-degree sexual assault, N.J.S.A.

2C:14-2(c)(4). He was evaluated at the Adult Diagnostic Treatment

Center, but found not to be a compulsive sex offender within the

purview of the Sex Offender Act, N.J.S.A. 2C:47-1 to -10.

Accordingly, defendant was sentenced to six years in prison with

two years of parole ineligibility as negotiated in his plea

agreement. Defendant did not directly appeal his conviction or

sentence.

Defendant was released from prison in 2009. In 2010, he was

indicted for six crimes related to alleged sexual assaults of two

females, one of whom was sixteen years old at the time of the

assault. Defendant pled guilty to second-degree sexual assault,

N.J.S.A. 2C:14-2(c)(1), involving the adult victim, and

fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b),

involving the sixteen-year-old victim. In accordance with his

plea agreement, in 2011, defendant was sentenced to an aggregate

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term of five years in prison subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2.1 Defendant also was sentenced to

parole supervision for life and restrictions under Megan's Law,

N.J.S.A. 2C:7-1 to -11. Defendant did not directly appeal those

convictions or sentences.

After completing his prison term for the 2011 convictions,

defendant was civilly committed to the Adult Diagnostic Treatment

Center in accordance with the Sexually Violent Predator Act (SVPA),

N.J.S.A. 30:4-27.24 to -27.38.

In 2015, defendant filed a PCR petition, contending that at

neither his 2006 plea nor his 2011 pleas was he informed that he

could be civilly committed. Thus, defendant contended that both

plea counsel had been ineffective and his pleas were not knowingly

given. Defendant was assigned counsel and the PCR judge, Judge

Richard F. Wells, conducted an evidentiary hearing on March 10,

2017. At that hearing, Judge Wells heard testimony from defendant

and the defense counsel who had represented defendant during his

2011 pleas and sentence. The counsel who had represented defendant

at his plea in 2006 could not be located.

1
Defendant was apparently again evaluated at the Adult Diagnostic
Treatment Center in connection with his pleas in 2011, and found
not to be within the purview of the Sex Offender Act. We, however,
were not provided with that report.

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 On April 13, 2017, Judge Wells issued a twenty-eight-page

written opinion and order denying defendant's petition. Judge

Wells first ruled that defendant's petition was not time-barred

because defendant became aware of the alleged ineffective

assistance of counsel only when he actually was civilly committed.

Judge Wells then analyzed defendant's claims related to his

pleas in 2006 and 2011. In connection with the plea in 2006, the

judge found that the evidence established that defendant had been

advised of the potential for civil commitment. Judge Wells also

found that defendant's testimony that he was not advised of that

potential to be incredible. Thus, Judge Wells found that defendant

had not established that his 2006 plea counsel was ineffective,

nor had defendant established any prejudice. Accordingly, Judge

Wells denied defendant's PCR petition related to his 2006 plea.

Turning to defendant's pleas in 2011, Judge Wells found that

defendant also failed to establish ineffective assistance of

counsel or prejudice. In that regard, Judge Wells found that the

testimony of his plea counsel was credible when she testified that

she routinely reviewed the potential for civil commitment with

defendants charged with sexual assault. In contrast, the judge

found defendant's testimony that he had not been so advised to be

incredible. Consequently, Judge Wells ruled that defendant had

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not established a claim of ineffective assistance of counsel in

connection with his 2011 pleas.

Finally, Judge Wells analyzed, but rejected defendant's claim

that his pleas were not given knowingly, voluntarily, and

intelligently. Judge Wells found that both plea counsel reviewed

with defendant forms that discussed the potential for his civil

commitment. The judge also found that both of the judges who took

the pleas reviewed with defendant that he had gone over and

understood those forms. Accordingly, Judge Wells found that the

pleas were taken in compliance with State v. Bellamy, 178 N.J.

127, 131, 138 (2003), and that all of the pleas were given

voluntarily, knowingly, and intelligently.

On appeal, defendant makes three arguments, which he

articulates as follows:

POINT I – DEFENDANT WAS NOT PROPERLY ADVISED
REGARDING THE POSSIBILITY OF CIVIL COMMITMENT
BY EITHER HIS DEFENSE ATTORNEYS OR THE TRIAL
COURTS, AND ACCORDINGLY, HE SHOULD BE ALLOWED
TO WITHDRAW HIS PLEAS OF GUILTY TO BOTH
INDICTMENTS

POINT II – INDICTMENT 06-01-353 SHOULD NOT
HAVE BEEN THE SUBJECT OF CIVIL COMMITMENT AS
THE OFFENSE TO WHICH DEFENDANT PLED GUILTY WAS
NOT A VIOLENT SEXUAL OFFENSE

POINT III – THE MATTER SHOULD BE REMANDED IN
LIGHT OF THE FAILURE OF THE STATE TO ESTABLISH
THAT DEFENDANT WAS COMMITTED IN ACCORDANCE
WITH LAW

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 We reject defendant's first argument substantially for the

reasons explained by Judge Wells in his thorough and well-reasoned

opinion. The factual findings by Judge Wells are supported by

substantial credible evidence in the record, and he correctly

applied those facts to the law. See State v. Nash, 212 N.J. 518,

540 (2013) (recognizing the "deferential standard of review" used

when a PCR court conducts an evidentiary hearing).

Defendant did not raise his second argument in his PCR

petition or at the evidentiary hearing. Accordingly, we decline

to address it for the first time on this appeal. State v. Walker,

385 N.J. Super. 388, 410 (App. Div. 2006). Although defendant

made reference to his third argument – that he was not given notice

of or a hearing for his civil commitment – that issue was not

properly raised before or addressed by the PCR court. Just as

importantly, defendant has not provided us with the record to

evaluate that contention. Accordingly, we will not consider

defendant's third argument. We further note that defendant's

second and third arguments are contentions related to his civil

commitment and are not properly the subject of a PCR petition

concerning his 2006 and 2011 guilty pleas.

Affirmed.

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