Opinion
DOCKET NO. A-0450-10T4
07-23-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELERY BOSTICK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mary M. Theroux, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy A. Hersh, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 00-12-1328.
Joseph E. Krakora, Public Defender, attorney for appellant (Mary M. Theroux, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy A. Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Pursuant to an agreement with the State, defendant Elery Bostick pled guilty in June 2001 to third-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4. The conviction was based upon defendant having sexual relations with a female whom he allegedly believed to be eighteen years old at the time but who actually was under the age of sixteen.
At the plea hearing, the prosecutor acknowledged to the court that "at least part of [the sexual encounter] was consensual." Nevertheless, because the female was too young to legally consent, their interaction violated the statute. N.J.S.A. 2C:24-4b(6) (declaring that it is not a defense that the actor mistakenly and reasonably believed that the child was at least age sixteen). In exchange for defendant's plea to the endangering charge, the State agreed to recommend a sentence of non-custodial probation. The State also agreed to dismiss other more serious offenses charged in the indictment, including second-degree criminal sexual assault.
As part of the documents incorporating the plea agreement, defendant and his counsel signed a form on the date of his plea indicating that he understood that, in addition to other facets of the sentence, the court "will impose a special sentence of community supervision for life[.]"
During the course of the plea hearing, the court reviewed on the record with counsel and defendant various aspects of the plea agreement, and the consequences that defendant would face at sentencing. However, there was no mention at the plea proceeding of community supervision for life, which was a mandatory condition of a sentence imposed under N.J.S.A. 2C:24-4a. N.J.S.A. 2C:43-6.4(a); N.J.A.C. 10A:71-6.11(b) (detailing the twenty-two general provisions of community supervision for life); see also Jamgochian v. N.J. Parole Bd., 196 N.J. 222, 237-38 (2008) (noting that N.J.S.A. 2C:43-6.4 was subsequently amended in 2003).
The community supervision for life requirement was not mentioned on the record in defendant's case until he appeared with his counsel for sentencing on September 21, 2001. The sentencing judge imposed a three-year probationary sentence, consistent with the plea agreement. The judge noted that the sentence was "subject to the requirements of Megan's Law," that defendant "will be required to report to the law enforcement authorities of his address and any change in address." The judge then noted, without elaboration, that defendant "is also subject to community supervision for life." No questions about the community supervision condition were asked or answered during the proceeding.
Defendant did not file an appeal of his conviction and sentence. He returned to the trial court, however, in June 2006, by filing a pro se petition for post-conviction relief ("PCR"). After he was assigned counsel, defendant filed an amended PCR petition in August 2008. In his PCR application, defendant asserted that he had been deprived of the effective assistance of counsel in 2001 because he had not been fully informed of the requirements for community supervision for life. According to defendant's certification in support of his petition, his plea counsel did not explain the meaning of community supervision for life to him during her representation, and, in fact, never even mentioned it. He also alleges that neither his plea counsel nor the judge reviewed with him the references in the plea forms to community supervision for life.
Defendant contends that he did not become aware of the stringency of these requirements until they were explained to him years later by his probation officer. Among other things, defendant states that he was startled to learn that he was subject to a curfew, that he was unable to attend his mother's funeral in Florida due to travel restrictions, that he is subject to a search at any time, that his parole officer may come to his workplace unannounced, that he is prohibited from living with a person who has children, even a fiancée, and that he could not take his three children out trick-or-treating on Halloween night. He provides in his appendix a two-page signed form document detailing the terms of community supervision for life, but it appears to be dated several years after his plea and sentence. He maintains that if he had known about these onerous conditions, he would not have pled guilty to the endangerment charge in June 2001. He asks for the opportunity to now withdraw his guilty plea and defend the charges.
The record contains no written statement from plea counsel addressing defendant's accusations of her ineffectiveness. However, the prosecutor represented to the trial court that she had contacted plea counsel. According to the prosecutor, plea counsel had no offhand recollection of what she did in defendant's case. Plea counsel also admitted to the prosecutor that "in those years [dating back to 2001] she may not have gone into every little aspect of community supervision for life."
The prosecutor opposed defendant's PCR petition, arguing that he had not shown that his plea counsel was ineffective, nor had he established justification to withdraw his plea under the criteria set forth in State v. Slater, 198 N.J. 145, 157-58 (2009).
The four Slater factors are (1) whether defendant raises a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or an unfair advantage to the defendant. Ibid.; see also State v. Munroe, ___ N.J. ___, ___ (2012) (slip op. at 14-17) (further explaining the Slater factors, including the lesser significance of the third factor).
After considering these submissions and oral argument, the judge presiding over the PCR matter dismissed defendant's petition. The judge found it unnecessary to hold an evidentiary hearing with testimony. Based upon the papers and arguments presented, the PCR judge concluded that defendant had not shown a prima facie case of ineffectiveness, nor had he met the criteria under Slater to withdraw his plea.
A different judge had taken defendant's plea and had sentenced him in 2001.
On appeal, defendant argues:
POINT I
THE CONCLUSION OF THE POST CONVICTION RELIEF COURT THAT DEFENDANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE WAS INFORMED OF THE CONSEQUENCES OF ENTERING A PLEA WHICH REQUIRED COMMUNITY SUPERVISION FOR LIFE WAS WHOLLY UNSUPPORTED BY THE RECORD BELOW.
POINT II
THE POST CONVICTION RELIEF COURT'S CONCLUSION THAT THE DEFENDANT ENTERED INTO A VOLUNTARY AND KNOWING PLEA AGREEMENT WITH FULL KNOWLEDGE OF THE MATERIAL CONSEQUENCES OF HIS ACTIONS WAS WHOLLY UNSUPPORTED BY THE RECORD AND ITS DENIAL OF PCR RELIEF MUST BE REVERSED.
Having duly considered these points and the State's response, in light of the applicable case law and the existing state of the record, we remand this matter for an evidentiary hearing to explore in more depth defendant's contentions of ineffectiveness and resulting prejudice.
Pursuant to the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). The United States Supreme Court recently confirmed that these standards of ineffectiveness apply to a criminal defense attorney's representation of a client in plea negotiations. Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1409-11, 182 L. Ed. 2d 379, 392-94 (2012) (applying Strickland to counsel's performance in plea negotiations); Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-88, 182 L. Ed. 2d 398, 406-11 (2012) (same).
The reported case most relevant to the present circumstances is State v. J.J., 397 N.J. Super. 91 (App. Div. 2007), appeal dismissed and remanded on other grounds, 196 N.J. 459 (2008). J.J. also involved a claim of ineffectiveness deriving from plea counsel's alleged failure to explain to a defendant pleading guilty to child endangerment the community supervision for life requirement. In that case, defendant likewise signed the standard plea forms relating to the community supervision for life. However, we expressed doubts as to whether "the questions on the forms would have alerted defendant to the possibility that he could not reside in a home with his new wife and any children she might have[.]" Id. at 100. We further noted that "the record does not reveal that [the defendant] appreciated or was informed of that risk by the judge or by his attorney at or about the time he agreed to plead guilty." Ibid.
We have ascertained that the Supreme Court remanded the matter in J.J. and vacated the grant of certification at the State's request. According to its motion papers filed with the Court, the State wanted the trial court to consider whether defendant had been erroneously sentenced to community supervision for life rather than parole supervision for life, and to also consider whether a sentence of probation was an authorized disposition for the offense involved. See Certification in Support of Motion to Dismiss State's Petition for Certification and to Remand to Trial Court for Corr. of Sentence at 1-3, State v. J.J., No. 62,132 (May 20, 2008). We have no information about what occurred in the ensuing remand.
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The defendant in J.J. consequently moved before his sentencing date to withdraw his guilty plea. Id. at 95. Although we did not reach the defendant's argument that his counsel had been ineffective, we agreed that it was appropriate, under the circumstances, to allow defendant to withdraw his guilty plea "based on the nondisclosure of a direct penal consequence of the plea[.]" Id. at 102.
The PCR judge in the present case did not cite to J.J. in his written decision, although he did cite to earlier cases on the subject arising in somewhat different contexts. See State v. Jamgochian, 363 N.J. Super. 220 (App. Div. 2003) (remanding for an evidentiary hearing on whether the defendant had been misinformed about the consequences of community supervision for life when entering his plea); State v. Williams, 342 N.J. Super. 83 (App. Div.) (reversing the trial court's order that permitted the defendant to withdraw his plea because this court found that he failed to show that he had been misinformed about the consequences of community supervision, or that his sentence violated his reasonable expectations), certif. denied, 170 N.J. 207 (2001). The PCR judge erred in his analysis by construing the law to limit relief to circumstances where the defendant was affirmatively misinformed about the facets of community supervision. As J.J. instructs, relief may be obtainable even in the absence of such an affirmative misrepresentation, in appropriate cases.
We are mindful that in J.J., the defendant moved for relief before, not after, his sentencing. However, that timing is not dispositive. The defendant in J.J. obviously became aware of the severe constraints of community service at some point between his plea hearing and his sentencing date, thus prompting his motion to withdraw his plea. There is no such proof of actual awareness by defendant here prior to his sentencing. We are also cognizant that the victim in J.J. attempted to recant her accusations, whereas the victim in the present case evidently did not. However, we cautioned in J.J. that such an attempted recantation, while relevant, was not required and "should not be dispositive of a defendant's motion to withdraw a plea affected by other infirmities." Id. at 100-01 n.2. Although defendant here has not professed his legal innocence to the endangerment charge, his contention that he was mistaken about the girl's age might have affected the ultimate outcome of potential further plea negotiations if, hypothetically, he had rejected the State's plea offer encompassing community supervision.
Given these considerations, it is preferable that the trial court conduct an evidentiary hearing on defendant's motion. Such a hearing should entail the testimony of the relevant witnesses, including defendant's former plea counsel, whose explanation of her customary practices at the time she represented defendant could be further explored and specified. Defendant himself may testify if he so chooses. Thereafter, the PCR judge shall make appropriate credibility findings and conclusions of law, guided this time by the principles set forth in J.J. We intimate no views on the outcome of such an evidentiary hearing, as our remand is neither an endorsement of defendant's position on the merits nor a rejection of the State's position.
Remanded for further proceedings. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION