                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2252-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DWAYNE DOVE, a/k/a
DWAYNE SCOTT DOVE,

     Defendant-Appellant.
______________________________

                    Argued May 29, 2019 – Decided June 21, 2019

                    Before Judges Yannotti and Rothstadt.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Warren County, Accusation No. 14-07-0252.

                    Andrew Robert Burroughs, Designated Counsel,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Andrew Robert Burroughs,
                    on the briefs).

                    Dit Mosco, Assistant Prosecutor, argued the cause for
                    respondent (Richard T. Burke, Warren County
                    Prosecutor, attorney; Kelly A. Shelton, Assistant
                    Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Dwayne Dove appeals from the Law Division's October 26,

2017 denial of his petition for post-conviction relief (PCR) without an

evidentiary hearing. For the reasons that follow, we affirm.

      Defendant pled guilty on July 12, 2004 in Union County to one count of

third degree attempting to lure a minor into a vehicle, N.J.S.A. 2C:13-6. The

court sentenced defendant to probation and placed him on Community

Supervision for Life (CSL) under Megan's Law, N.J.S.A. 2C:7-1 to -23.1

Following a violation of his probation in 2005, defendant was sentenced to

continued probation and remained on CSL.

      In 2006, defendant signed the conditions of CSL, which required him,

among other things, to obtain permission from his parole officer prior to leaving

the State. In 2008, the New Jersey State Parole Board (Board) required him to

wear a GPS ankle tracker.

      Defendant never appealed from his convictions or sentences or moved to

withdraw his 2004 guilty plea. He also never appealed from the Board's final



1
  "CSL is a component of the Violent Predator Incapacitation Act, which is also
a component of a series of laws, enacted in 1994, commonly referred to as
'Megan's Law.' . . . [and] is designed to protect the public from recidivism by
sexual offenders." State v. Perez, 220 N.J. 423, 436-37 (2015).
                                                                         A-2252-17T3
                                       2
decision that required him to wear the tracking device. Instead, defendant filed

several PCR petitions, the first of which was dismissed on October 2, 2008 and

two subsequent petitions were withdrawn.

      By March 2014, defendant was living in Warren County. On March 27,

2014, defendant dismantled the GPS device and left the State without informing

his parole officer, contrary to the conditions of his CSL. Defendant was later

charged in a complaint with fourth-degree violation of the terms of his CSL,

N.J.S.A. 2C:43-6.4(d); third-degree interference with the GPS tracker, N.J.S.A.

30:4-123.95; and third-degree failure to comply with monitoring requirements,

N.J.S.A. 30:4-123.94. Defendant was later apprehended in Pennsylvania.

      After his extradition, on July 18, 2014, defendant pled guilty pursuant to

a plea agreement to an accusation that only charged him with the one count of

fourth-degree violating the conditions of CSL. At his plea hearing, defendant

admitted that he violated CSL by leaving the State without permission. As part

of his plea, defendant agreed to restitution for the damaged GPS tracker. As

stated in his plea agreement, he expressly agreed to make the payment for the

damage, even though the GPS device related charges were being dismissed. The

court sentenced defendant to 364 days in jail and dismissed all other charges

against him, all in accordance with his plea agreement.


                                                                        A-2252-17T3
                                       3
      Defendant filed another PCR petition on January 2, 2016 in Union County

in which he argued that being placed on CSL one year after being discharged

from probation violated his constitutional rights against double jeopardy. The

PCR court dismissed defendant's contention as being time-barred. It found that

defendant "failed to state a cause of action warranting relaxation of the time bar

and assignment of counsel . . . ." Citing to Rule 3:22-12(a), it observed that the

petition was filed more than eleven years after sentencing and ten years after

defendant signed the CSL conditions.          The court also found defendant's

argument to be meritless because the issue was "not something [he] could not

have discovered with due diligence" and the original sentence included a

probationary sentence as well as CSL. An order reflecting the court's decision

was entered on July 11, 2017. Defendant did not appeal from that order.

      While his Union County PCR petition was pending, on August 15, 2016,

defendant filed another PCR petition, this time in Warren County, challenging

his 2014 conviction. Defendant submitted a brief in support of his petition on

May 22, 2017, in which he argued that he received ineffective assistance of

counsel (IAC) in 2014 because counsel did not review the case and allowed him

to plead guilty "to a charge that was in violation of his . . . equal protection and

due process [rights], in that he was charged and convicted in spite of the


                                                                            A-2252-17T3
                                         4
charge(s) putting him in double jeopardy" and violating the ex post facto clauses

of the state and federal constitutions. Defendant also argued that he was entitled

to an evidentiary hearing.

      Judge John H. Pursel considered the parties' submissions and oral

arguments before denying defendant's petition and placing his reasons for doing

so on the record on October 25, 2017. The judge found that there was no

evidence that plea counsel was ineffective so a hearing was not necessary. He

distinguished the 2004 and 2014 convictions, noting that defendant never moved

to withdraw his guilty plea in Union County and the opportunity to do so had

since expired. The judge concluded that there was no evidence of IAC in Warren

County and he was "unable to [e]ffect any changes" in Union County because

of "parallel jurisdiction." Judge Pursel's October 26, 2017 order reflected the

denial of defendant's application for an evidentiary hearing and noted that his

"petition for . . . [PCR] [wa]s dismissed for failure to state a claim." This appeal

followed.

      Defendant presents the following issues for our consideration in his

appeal.2



2
  On June 21, 2018, we denied defendant's motion for remand to decide the
matter on the merits.
                                                                            A-2252-17T3
                                         5
            POINT I

            AS THE PCR COURT MISAPPREHENDED
            PETITIONER'S CLAIM, THAT MATTER MUST BE
            REMANDED FOR A NEW HEARING.

            POINT II

            AS THERE ARE GENUINE ISSUES OF MATERIAL
            FACTS IN DISPUTE, AN EVIDENTIARY HEARING
            WAS REQUIRED.

            POINT III

            THIS COURT MAY EXERCISE ITS ORIGINAL
            JURISDICTION TO ADJUDICATE PETITIONER'S
            CLAIM ON ITS MERITS.

      In support of his arguments, defendant asserts that his PCR petition did

not challenge his 2004 conviction, but only "the application of the GPS

device . . . and his subsequent punishment when he removed the device." He

contends that by his agreeing to pay for the damage to the GPS device, in 2014,

"the application of the GPS device violated the ex post facto clause of the U.S.

Constitution," and the matter was properly presented to the court in Warren

County. According to defendant, the Board "forced [him] to wear an ankle GPS

bracelet [in 2008]. . . . [which] was not a condition when [he] pled guilty in

2004." It was only when the Board imposed the requirement that he contends

he was "placed in jeopardy of violating N.J.S.A. 30:4-123.95 . . . . [and


                                                                        A-2252-17T3
                                       6
subjected to] 'a greater punishment than the law annexed to the crime when

committed.'"

      According to defendant, his 2014 plea counsel should have contended that

the punishment for removing and damaging the device was unconstitutional

since the imposition of the device was not part of the original sentence. He

argues that "the matter of the GPS [tracker] was properly before the PCR court"

by virtue of the requirement to pay restitution. He avers that he is entitled to an

evidentiary hearing based on the claims raised in his PCR petition and argues

that he was prepared to provide evidence that wearing the tracker caused

emotional distress. Defendant argues that, in the alternative, we should exercise

original jurisdiction under Rule 2:10-5 in order to determine whether his

constitutional rights have been violated as a result of the Board's application of

a GPS tracker to his ankle.

      Because Judge Pursel denied defendant's PCR petition without an

evidentiary hearing, our review is de novo. We "conduct a de novo review of

both the factual findings and legal conclusions of the PCR court." State v.

Harris, 181 N.J. 391, 419, 421 (2004) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995)).




                                                                           A-2252-17T3
                                        7
      We conclude from our de novo review that defendant's contentions on

appeal are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2). We affirm the denial of defendant's petition substantially for

reasons expressed by Judge Pursel. We add only the following comments.

      Defendant's Warren County conviction had nothing to do with requiring

defendant to wear the GPS device. That was the result of his conviction in Union

County many years ago and the Board's decision. Defendant never appealed

from those decisions although he could have. A PCR petition can never be a

substitute for an appeal. R. 3:22-3. Moreover, defendant's Warren County

conviction did not impose any punishment on him for tampering with his GPS

device under N.J.S.A. 30:44-123.95 as that charge was dismissed. The only

reason defendant was compelled to pay for the damages to the device was his

express agreement to do so.

      Finally, even if defendant presented a cognizable PCR claim, there is no

evidence that defendant's constitutional rights were violated by virtue of being

required to use the GPS device while he remained on CSL. Cf. Riley v. N.J.

State Parole Bd., 219 N.J. 270 (2014) (finding that monitoring and supervision

requirements violated the ex post facto clauses of the United States and New

Jersey Constitutions when retroactively applied to a convicted sex offender who


                                                                        A-2252-17T3
                                       8
served his entire sentence and was released under no form of parole

supervision). Nor was defendant subjected to the enhanced penalty provision of

the 2014 amendment to N.J.S.A. 2C:43-6.4, which would have subjected him to

an ex post facto law. See State v. Hester, 233 N.J. 381, 385 (2018) ("bar[ring]

the retroactive application of the 2014 Amendment to defendants' CSL

violations"). Accordingly, defendant's petition would have failed to establish

any claim of IAC based on his 2014 plea counsel's alleged failure to advise him

his rights would be violated if he pleaded guilty. See Strickland v. Washington,

466 U.S. 668, 687 (1984) (stating the two-pronged test for IAC); see also State

v. Fritz, l05 N.J. 42, 49 (l987) (adopting the Strickland standard).

      Affirmed.




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