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NOT FOR PUBLICATION WITHOUT THE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-3289-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRIAN K. LINDSEY,
Defendant-Appellant.
_____________________________
Submitted September 27, 2017 – Decided November 20, 2017
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
00-04-0490.
Joseph E. Krakora, Public Defender, attorney
for appellant (Janet A. Allegro, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, of counsel; Nicholas
D. Norcia, Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Brian K. Lindsey seeks reversal of the September
9, 2015 Law Division order denying his petition, after an
evidentiary hearing, for post-conviction relief (PCR) based on
ineffective assistance of counsel. Because we do not agree that
additional steps should have been taken to assess his disabilities
before the entry of his guilty plea, we affirm. We also concur
with the Law Division judge that the record establishes defendant's
understanding of the nature and consequences of his decision,
including the possibility of civil commitment under the Sexually
Violent Predator Act (SVPA), N.J.S.A. 2C:47-5(d), N.J.S.A. 30:4-
27.24 to 30:4-27.31.
Defendant pled guilty to only one count of the indictment, a
second-degree sexual assault, N.J.S.A. 2C:14-2(c). The Adult
Diagnostic Treatment Center (ADTC) found defendant's conduct in
the commission of the offense was characterized by a pattern of
repetitive and compulsive behavior, and recommended treatment at
Avenel. See N.J.S.A. 2C:47-2.1 Defendant was finally sentenced
on July 17, 2003, after remand, to nine years imprisonment, in
accord with the agreement.2 The term of imprisonment was subject
1
The original sentencing judge did not make a finding regarding
defendant's amenability to treatment and willingness to
participate, which must be included in the Judgment of Conviction
(JOC). Accordingly, the JOC was thereafter amended a third time
on March 21, 2005, to enable defendant to participate in sex
offender treatment.
2
Defendant's 2001 sentence was remanded because the Law Division
judge, mistakenly believing it was mandatory, deviated from the
2 A-3289-15T4
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Upon
becoming eligible for parole on February 14, 2008, defendant was
civilly committed pursuant to the SVPA. Defendant filed the PCR
petition on January 23, 2013. During the hearing, the judge found
it was counsel's "habit and custom" to review the plea forms with
his clients before their entry of a guilty plea. We detail
counsel's testimony in the relevant section of the opinion.
Fourteen years had passed since this plea was entered,
unsurprisingly, counsel had no recollection of the matter. The
judge said that "it would have been consistent with this custom
that he would have gone over the plea forms with [d]efendant
including . . . the possibility of civil commitment." The judge
further found that although counsel "could not recall many details
of the (SVPA) [he] claimed that he would have gone over it with
his client at the time of his plea." It had been years since
counsel had represented a defendant subject to the SVPA.
At the hearing, defendant denied that counsel had explained
anything to him, or that he had signed or initialed the plea forms.
He claimed that if he had understood the civil commitment
agreement and imposed a ten-year sentence of imprisonment. State
v. Lindsey, No. A-4644-01 (App. Div. June 11, 2003)(slip. op. at
18-19). On that appeal, defendant argued that not only was his
sentencing erroneous, but that the court double counted an element
of the offense and ignored mitigating factors. Ibid.
3 A-3289-15T4
ramifications of his plea, he would have chosen to go to trial.
Defendant denied that counsel read the plea form to him, and said
when he told his attorney he could not read or write, his attorney
merely told him to do the best he could.
The judge found counsel credible, and defendant incredible.
When the plea was entered, counsel clearly stated on the record
that defendant had a developmental disability, and that he reviewed
the forms with defendant with that in mind. The judge was
satisfied that the plea colloquy not only supported counsel's
testimony, it demonstrated that defendant's plea was knowing and
voluntary.
The judge observed that defendant's testimony during the PCR
hearing was wholly inconsistent, not only with his sworn statements
when the plea was entered, but even with the factual assertions
made in his pro se petition. During the plea colloquy, defendant
acknowledged that his attorney read the forms to him, and that he
initialed and signed them.
The judge also noted that at sentencing, the prosecutor
specifically mentioned the possibility of civil commitment because
of the ADTC findings. Defendant did not then question the
prosecutor's statements or challenge the findings that prompted
them.
4 A-3289-15T4
The judge who accepted defendant's guilty plea thoroughly
reviewed the process and the forms with him, to ensure the record
reflected his understanding of the nature of the plea and the
consequences despite any intellectual limitations. While the plea
was being taken, defendant said that although he understood
everything at that moment, he might not remember it in the future.
During the plea colloquy defendant asked questions.
During his sentencing, defendant made a statement. He said:
Yes. I want to say something to the victim
and my mom. Sorry for what I done. I know I
can't take back what I done, but I can't change
my ways and actions. I ask God every[ ]day and
every night to forgive, and I hope that you
can forgive me too. But if you can't, that's
okay too, 'cause I already have been forgiven
from God. Thank you.
Now on appeal, defendant states:
POINT I: THE COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-CONVICTION
RELIEF SINCE HE MET HIS BURDEN THAT HE FAILED
TO RECEIVE EFFECTIVE LEGAL REPRESENTATION AT
THE TRIAL LEVEL
(A) TRIAL COUNSEL'S TESTIMONY AT THE
PCR HEARING WAS INSUFFICIENT TO
SUPPORT "HABIT" EVIDENCE UNDER
N.J.R.E. 406
(B) DEFENDANT WAS NOT PROPERLY
ADVISED REGARDING THE POSSIBLE
CONSEQUENCES OF CIVIL CONFINEMENT
IN LIGHT OF HIS DEVELOPMENTAL
DISABILITY
5 A-3289-15T4
POINT II: TRIAL COUNSEL'S FAILURE TO ARRANGE
FOR THE APPROPRIATE TESTS TO DETERMINE THE
EXTENT OF DEFENDANT'S DEVELOPMENTAL
DISABILITY AND ABILITY TO MAKE A KNOWING,
VOLUNTARY GUILTY PLEA CONSTITUTED INEFFECTIVE
ASSISTANCE OF COUNSEL
I.
A PCR petition alleging ineffective assistance of counsel is
governed by the two-prong Strickland test.3 To prevail on a claim
of ineffective assistance of counsel, the defendant bears the
burden of proving both prongs of the test by the preponderance of
the evidence. Id. at 687-88, 690, 694 104 S. Ct. at 2064, 2066,
2068, 80 L. Ed. 2d at 693, 695, 698.
Under the first prong, the defendant "must identify the acts
or omissions of counsel that are alleged not to have been the
result of reasonable professional judgment." Id. at 690, 104 S.
Ct. at 2066, 80 L. Ed. 2d at 695. "The court must then determine
whether, in light of all the circumstances, the identified acts
or omissions were outside the wide range of professionally
competent assistance." Ibid. However, there is a presumption
that counsel provided "adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment." Ibid.
3
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
6 A-3289-15T4
The second prong requires that defendant show actual
prejudice. Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong, "[t]he defendant must show that there is
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. A reasonable
probability is one that undermines confidence in the outcome.
Ibid.
In State v. Fritz, 105 N.J. 42, 58 (1987), the New Jersey
Supreme Court adopted the two-prong test set out in Strickland.
"[T]he key inquiry is 'whether counsel's conduct so undermined the
proper functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.'" State v. Holmes,
290 N.J. Super. 302, 310 (App. Div. 1996) (quoting Strickland,
supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-
93).
The standard of review for ineffective assistance of counsel
claims when a defendant enters into a guilty plea is essentially
the same. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370,
88 L. Ed. 2d 203, 210 (1985). A defendant must first establish
that the representation was deficient. Ibid. Second, a defendant
must demonstrate that, but for counsel's errors, he or she would
not have entered into a plea agreement with the State. Ibid.
7 A-3289-15T4
In reviewing the denial of a PCR petition, we ask whether the
trial court's fact findings are supported by sufficient credible
evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009).
Deference is given to the trial court's credibility
determinations. State v. Reevey, 417 N.J. Super. 134, 146 (App.
Div. 2010), certif. denied, 206 N.J. 64 (2011). Questions of law,
however, are reviewed de novo. State v. Harris, 181 N.J. 391, 420
(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.
2d 898 (2005).
II.
During the hearing, defendant's trial attorney testified that
he had been associated with the Public Defender's Office, and
served as pool counsel, for over forty-six years. He had been
involved in over one thousand trials, and over four or five
thousand plea agreements. Since representing this defendant,
counsel had been involved in approximately seventy-five trials.
He had no specific recollection of this defendant.
Before trial counsel began to testify about his "custom and
habit" when representing a client entering a guilty plea, defense
counsel objected. The judge overruled the objection given
counsel's years of experience as a criminal defense attorney. The
judge opined that an attorney with that background, in the absence
of a specific recollection, should be allowed to testify about his
8 A-3289-15T4
habit and custom. Although no one cited to the rule by number,
the references and discussion concerned N.J.R.E. 406. That rule
provides that evidence of habit or routine practice "is admissible
to prove that on a specific occasion a person or organization
acted in conformity with the habit or routine practice." N.J.R.E.
406(a).
Actions engaged in as part of a repeatedly performed business
practice support the inference that the action in question was
taken, and is admissible. See Merchants Express Money Order Co.
v. Sun Nat'l Bank, 374 N.J. Super. 556, 561 (App. Div. 2005),
certif. appeal dismissed, 217 N.J. 591 (2006). The disputed action
in that case was a banking procedure, found to be admissible
because it was well-established routine. In this case, where the
attorney had engaged in the practice of criminal law for many
years, and had clients who had entered guilty pleas in thousands
of cases, it was reasonable for the judge to admit habit and custom
evidence. The attorney's practices were more than well-
established.
The attorney's testimony, together with the transcript of the
plea proceeding, constituted sufficient evidence that counsel
explained the plea forms to defendant, including the potential
consequence of commitment under the SVPA. The judge's admission
of the evidence during the PCR hearing was thus a reasonable
9 A-3289-15T4
exercise of his discretion. McDarby v. Merck & Co., Inc., 401
N.J. Super. 10, 79-80 (App. Div. 2008) (finding no reversible
error where the judge permitted evidence of habit or custom).
Just as counsel had in thousands of other cases, he explained the
plea bargain process to this client, reviewed the forms, and
discussed the significant consequences. Therefore, we do not
agree that trial counsel's testimony was insufficient to support
the admission of habit evidence under N.J.R.E. 406.
III.
It is well established law that a defendant must be advised
of the possibility of civil confinement – fundamental fairness
demands it. State v. Bellamy, 178 N.J. 127, 139-40 (2003). The
plea forms in use at the time defendant entered his guilty plea
included a separate page regarding the possibility of civil
commitment.
Defendant's claim that he was not told about civil commitment
is simply not corroborated by the record. Not only did he initial
the relevant page, but he said under oath that his attorney
reviewed the forms with him and he understood what they were.
Question eight on defendant's plea form4 states that if a
defendant is incarcerated at Avenel or any other facility "for
4
"Additional Questions for Certain Sexual Offenses Committed After
December 1, 1988."
10 A-3289-15T4
commission of a sexually violent offense," he might be civilly
committed under the SVPA. As we have said, the record and
counsel's habit and custom support the conclusion that it was
explained to him, as were the other provisions of the plea
agreement. It is noteworthy that when defendant was sentenced,
the issue of civil commitment was specifically raised by the
prosecutor, who referred to defendant as a danger to society
because of his prior conviction history and the Avenel evaluation.
IV.
Finally, we address defendant's claim that his attorney was
ineffective because he failed to arrange for testing to determine
"the extent of defendant's developmental disability and ability
to make a knowing, voluntary guilty plea[.]" Defense counsel
noted at the beginning of the plea hearing that the issue of
defendant's competence was a "borderline situation."
Because of the concern, the judge closely attended to
defendant's responses as he proceeded to take the plea. At the
end of the colloquy, the judge said:
There's no question, in my mind, he's
competent. He understands me. He's asked
intelligent questions.
He responded lucidly and appropriately in all
respects.
Had counsel not even mentioned what he did
mention – I'm pleased that he did, lest it be
11 A-3289-15T4
raised later, as opposed to being mentioned
on the record now, that the Court would not
have noticed anything unusual about this
particular defendant.
I'm satisfied, he's competent. He understands
what the proceedings are all about. And the
court will accept the plea at this time.
Most tellingly, absent from the record is any documentation
regarding defendant's cognitive functioning. No examinations or
reports were referred to in the pleas and sentences. Presumably,
the issue arose in defendant's prior matters, yet he was never
found incompetent. Funding for expert evaluations is available
through the Office of Public Defender, yet none was obtained. At
the sentence hearing, at which defendant's Avenel evaluation was
mentioned, no one discussed finding that, in addition to being a
repetitive and compulsive offender, defendant had legally
significant intellectual limits. When the PCR petition was filed,
again, no evaluation was provided. We were not provided with a
copy of the Avenel report, presumably because it was not helpful
to defendant's cause. Defendant's claims amount to nothing more
than bald assertions. See State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999).
V.
The State asserts that the court should have rejected
defendant's petition because it was untimely. If calculated from
12 A-3289-15T4
the date of defendant's first resentence in 2003, or even his
final resentence in 2005, defendant's petition was not filed within
the five years required by the rule within which such petitions
should be considered. See R. 3:22-12. Because of the nature of
defendant's factual claims, we elect not to reach the argument.
Affirmed.
13 A-3289-15T4