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APPROVAL OF THE APPELLATE DIVISION
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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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