                        RECORD IMPOUNDED

                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0722-12T4

STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                        August 15, 2014

v.                                            APPELLATE DIVISION

WILLIAM SMULLEN,

     Defendant-Appellant.

_____________________________________

         Submitted October 17, 2013 – Decided August 15, 2014

         Before Judges Fuentes, Fasciale and Haas.

         On appeal from Superior Court of New Jersey,
         Law Division, Somerset County, Indictment
         No. 03-07-0411.

         Robert    A.        Warmington,      attorney        for
         appellant.

         Geoffrey   D.   Soriano,    Somerset    County
         Prosecutor, attorney for respondent (James
         L.   McConnell,  Assistant    Prosecutor,   of
         counsel; Cameron MacLeod, on the brief).

         The opinion of the court was delivered by

FUENTES, P.J.A.D.

     On November 14, 2003, defendant William Smullen pled guilty

pursuant to a negotiated plea agreement with the Somerset County

Prosecutor's   Office   to   two   counts    of    second    degree    sexual

assault, N.J.S.A. 2C:14-2c(4), based on having consensual sexual
intercourse on two separate occasions with a fifteen-year-old

girl.    Defendant was twenty-three years old at the time and a

lifelong resident of the State of New York.                 As a mandatory part

of   this   plea   agreement,   defendant        would     also   be   placed    on

community supervision for life pursuant to N.J.S.A. 2C:43-6.4.

      Because defendant travelled from New York to this state to

engage in these sexual encounters, he was also charged by the

United   States    Attorney's   Office        with   the   federal     offense   of

"Coercion or enticement of a minor female," in violation of 18

U.S.C.A. § 2422.      Under the plea agreement, the State agreed to

recommend that the custodial part of the sentence imposed by the

Superior Court should run concurrent with the sentence imposed

by the United States District Court of New Jersey.

      On April 23, 2004, the District Court sentenced defendant

to serve a term of forty-six months in federal prison.                           On

October 26, 2006, the Superior Court in Somerset County found

sufficient grounds to sentence defendant within the third degree

range    and   imposed   a   term   of       imprisonment    of   three    years.1




1
  Because defendant pled guilty to a second degree offense, he
was subject to a term of imprisonment of between five to ten
years.   N.J.S.A.  2C:43-6a(2).  Exercising  the  discretionary
authority conferred in N.J.S.A. 2C:44-1f(2), which requires the
court to find the mitigating factors preponderate over the
aggravating factors, State v. Balfour, 135 N.J. 30, 35 (1994),
the judge decided to sentence defendant to a degree lower,
                                                    (continued)


                                         2                                A-0722-12T4
Consistent with the plea agreement, the court ordered that this

sentence run concurrent with the sentence imposed by the federal

court.    The court also placed defendant on community supervision

for life, as provided for in N.J.S.A. 2C:43-6.4.                 Defendant did

not file a direct appeal challenging any part of his conviction

or sentence.

    Despite some discrepancy in the record,2 the post-conviction

relief   (PCR)   court    found      defendant    timely    filed    a   petition

seeking PCR pursuant to Rule 3:22-2(a), alleging a denial of his

Sixth    Amendment    right     to    effective    assistance       of   counsel.

Defendant claims he was compelled to plead guilty without being

given    sufficient      time    to    review     with     his   attorney      the

information provided by the court concerning the requirements

and ramifications of being placed on community supervision for

life under N.J.S.A. 2C:43-6.4.              The record of the plea hearing



(continued)
within a range of no less than three nor more than five years of
imprisonment. N.J.S.A. 2C:43-6a(3).
2
  Appellate counsel indicates in his brief before us that
defendant filed this PCR petition on May 4, 2012.    Citing the
time   restrictions  in  Rule  3:22-12(a)(1),  the   PCR  court
specifically found defendant's petition was timely "because the
Petitioner was sentenced on October 26, 2006 and filed his
Petition for Post-Conviction Relief on or about September 27,
2011, just before the five year statute of limitations ran."
The State does not dispute the PCR court's findings in this
respect.




                                        3                                A-0722-12T4
reflects the trial judge gave defendant a ten-page document,3

allegedly summarizing the requirements of community supervision

for life, and directed defense counsel to review the document

with defendant over the court's one-hour lunch recess.

       Defendant      also        claims        he     was     denied         effective

representation of counsel because his attorney did not discuss

with   him   the    specific      requirements         under   N.J.S.A.       2C:43-6.4

during   plea      negotiations,      including        whether,    as    a    New   York

resident,    he     would    be    subject       to    different    or       additional

restrictions       upon     completion         of     his    custodial        sentence.

Defendant submitted a certification in which he attests that he

only expected "to submit to the specific registration guidelines

of the particular version of 'Megan's Law[4]' in effect in the

state where I would be residing upon my release (New York)."

However, his attorney was totally unaware of the restrictions

imposed by New York.

       The   PCR     court        denied       defendant's     petition         without

conducting an evidentiary hearing.                  The court held:

3
  Defendant did not produce this ten-page document in support of
his PCR petition, and neither the prosecutor nor the court have
a copy of it in their files.
4
  Although not an issue in this case, we pause to note the common
misconception of referring to community supervision for life
under N.J.S.A. 2C:43-6.4 as a "Megan's Law" requirement.      The
requirements imposed under what is commonly referred to as
"Megan's Law" are codified under N.J.S.A. 2C:7-1 to -19.



                                           4                                   A-0722-12T4
          It would be overly onerous on both the
          defense attorney and the Court to be
          required to advise Petitioner[s] of the
          community supervision for life provisions
          applicable in other states on the chance
          that a Petitioner might choose to reside in
          that state and was permitted to under the
          provisions of the New Jersey community
          supervision for life.

    Defendant now appeals raising the following argument:

          POINT I

          THE     DEFENDANT    RECEIVED    INEFFECTIVE
          ASSISTANCE OF COUNSEL BECAUSE HE WAS NOT
          PROPERLY ADVISED REGARDING THE CONSEQUENCES
          OF COMMUNITY SUPERVISION FOR LIFE, INCLUDING
          THE ELECTRONIC MONITORING PROGRAM, BEFORE
          AND DURING HIS PLEA, AND MUST THEREFORE BE
          ALLOWED TO WITHDRAW HIS PLEA.

    We agree with defendant and reverse.            As a threshold issue,

defendant was a lifelong New York resident at the time he pled

guilty.   Thus,     the   PCR   court's   concern   about   the   potential

"onerous" burden it would place on defense counsel and the trial

judge "to be required to advise [a defendant] of the community

supervision for life provisions applicable in other states on

the chance that a Petitioner might choose to reside in that

state" is not an accurate characterization of the salient facts

in this case.     (Emphasis added).       The record shows that defense

counsel, the prosecutor, and the trial judge were all aware that

defendant was a lifelong resident of New York, that he expected

to return to his home state once he completed the custodial part




                                     5                             A-0722-12T4
of his sentence, and that he expressed particular concern about

the New York implications of his New Jersey conviction.

    It is undisputed that at the time of the plea hearing,

defense   counsel   was   not   aware   of   New   Jersey's   community

supervision requirement.    It was the trial judge who introduced

the topic and made the following prescient statement:

          There's now a publication coming out from
          parole    to    describe   what    community
          supervision for life is.    So in order to
          avoid any PCR's at a later date, indicating
          I didn't know what community supervision for
          life is, and I'm going to give you [defense
          counsel] a copy and you can go over with
          your client, and I'll get it on record
          you've reviewed it and that will not be a
          problem in the future.    So I'll hold this
          and take care of another case before we
          break for lunch.

    The following colloquy took place after the court's lunch

recess:

          THE COURT:     We're back on the William
          Smullen case. Let me start off, we already
          have counsel's appearance on this.  We got
          you on record on that one.

          [Defense counsel thereafter re-announces his
          appearance on behalf of defendant.]

          THE COURT: And [defense counsel], I take it
          you've had a chance to review with Mr.
          Smullen what exactly is meant by community
          supervision for life.

          [DEFENSE COUNSEL]:     Yes, I have, your Honor,

          THE COURT:   And in fact, the Court has, I
          believe, given you a ten-page form you've



                                  6                            A-0722-12T4
received from the Department of Corrections
outlining under the Administrative Code
section 10A:71-6.11 as to what is community
supervision for life.   And you've reviewed
that with your client?

[DEFENSE COUNSEL]:      Yes, we've reviewed it.

THE COURT: Is that so, Mr. Smullen, you've
reviewed that community supervision for life
provision?

THE DEFENDANT:   Yes, I did.

THE COURT:   You understand it completely?

THE DEFENDANT:   Yes, I do.

THE COURT:   And you want to proceed with the
sentence?

THE DEFENDANT:   Yes.

THE COURT:   And it may [a]ffect where you
live, do you understand that?

THE DEFENDANT:   Yes, sir.

THE COURT:    There's a provision in there
about supervision by the Department of
Corrections in New Jersey; do you understand
that?

THE DEFENDANT:   Yes.

THE COURT:   And you want to go ahead with
the plea bargain anyway?

THE DEFENDANT: Yes, I do.       One question, my
residence is in New York.

THE COURT:   Well, it has a provision in
there about their supervision about where
you live. It may not be at your discretion,
it may be at their discretion. So yeah, it




                         7                         A-0722-12T4
             may [a]ffect, yes, it may              [a]ffect       your
             ability to live in New York.

             THE COURT:   What do you want to do?     You
             want to continue to live in New York or not?
             As I sit here today, I have no idea what
             they're going to say, I just want to make
             sure you understand you run the risk if they
             decide you have to stay in New Jersey, you
             have to stay in New Jersey where they can
             watch you more closely, do you understand
             that?

             THE DEFENDANT:       Yes.

             THE COURT:   But understanding that you want
             to go ahead with the plea?

             THE DEFENDANT:       Yes.

             THE COURT:     [Addressing          defense    counsel]
             Anything else counsel?

             [DEFENSE COUNSEL]:          I don't believe so, your
             Honor.

       In support of his PCR petition, defendant certified that

during the lunch recess his attorney requested the prosecutor to

agree "to a postponement, of at least one day, to allow me to

have   additional     time   to     adequately   review     and    consider     [the

community    supervision      for    life]    conditions,    as     well   as    the

implications attendant to them."              According to defendant, his

counsel said the prosecutor "rebuffed this request and stated

that   his   office   would    immediately       withdraw    the    5-year      flat5


5
  The term "flat," in the context of a custodial state prison
term, is a colloquialism used by lawyers for a term of
                                                  (continued)


                                          8                                A-0722-12T4
offer, and increase it to a '7-year flat' offer if [defendant]

did not enter my guilty plea that afternoon."

         We   review    a    claim     of    ineffective     assistance         of    counsel

under     the    two-prong          test    established      by    the     United      States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by

our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

First,        defendant       must        demonstrate     that      defense       counsel's

performance was deficient.                  Strickland, supra, 466 U.S. at 687,

104 S. Ct. at 2064, 80 L. Ed. 2d at 693.                          Second, he must show

there exists "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.

         In determining a claim of ineffective assistance of counsel

in   a    case   in     which      a   defendant      pled   guilty,      "the       issue   is

whether it is ineffective assistance of counsel for counsel to

provide       misleading,          material    information        that    results       in   an

uninformed plea, and whether that occurred here."                                    State v.

Nunez-Valdez,          200      N.J.        129,    139-40    (2009).             Community

supervision       for       life    under     N.J.S.A.    2C:43-6.4       has    long     been


(continued)
imprisonment without                any     minimum     mandatory        term    of    parole
ineligibility.



                                                9                                     A-0722-12T4
considered a punitive consequence of a criminal sentence.                          State

v. Schubert, 212 N.J. 295, 308 (2012) (citing State ex rel.

B.P.C., 421 N.J. Super. 329, 354 (App. Div. 2011); State v.

Jamgochian,    363   N.J.    Super.      220,    224    (App.    Div.    2003)).         A

defendant     pleading      guilty       to     an     offense     triggering         the

requirements of community supervision for life is entitled to

expect his attorney to provide him with complete and accurate

information concerning the ramifications of this material aspect

of a plea agreement.         State v. Agathis, 424 N.J. Super. 16, 23

(App. Div. 2012).

    Based     on   the   evidence        presented      before     the    PCR    court,

defendant     established      a     prima      facie     case     of    ineffective

assistance    of     counsel       and    was    therefore       entitled        to     an

evidentiary    hearing      pursuant      to    Rule    3:22-10(b).         State       v.

Preciose, 129 N.J. 451, 462-63 (1992).                     Defense counsel was

entirely uninformed at the plea hearing about the particular

requirements of community supervision for life.                          But for the

trial court's impromptu intervention, this issue would have been

completely    unaddressed.          The       court's    attempt    to    cure        this

deficiency by giving defense counsel a one-hour lunch recess to

familiarize    himself      with    these       requirements,      and    thereafter

provide meaningful, professionally sound advice to defendant on




                                          10                                    A-0722-12T4
the     implications         of     the       community     supervision          for   life

requirements, was patently inadequate.

       Even more relevant from defendant's perspective, neither

the court nor his attorney provided him with any information

about how these restrictions would apply in his home state of

New York.         We expect a reasonably competent New Jersey attorney

to    be    able      to   research     New    York   law     and   make    at    least     a

preliminary determination of his or her ability to advise a

client about the New York ramifications of pleading guilty to a

crime in New Jersey.              If after researching New York law, counsel

believes he or she is not competent to offer professionally

sound advice to the client, then it is counsel's responsibility

to consult with, or refer the client to, an attorney who can do

so.     Leaving the client uninformed about this vital aspect of

his decision to accept or reject the State's plea offer is not

an option.

       In       the   interest     of   clarity,      we    emphasize      that    defense

counsel's        subpar     legal      performance     here    satisfies      the      first

prong under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at

2064,      80    L.   Ed.   2d    at    693,    and   falls    within      the    paradigm

articulated by the Court in Nunez-Valdez, supra, 200 N.J. at

138.       Counsel should have been aware of the penal consequences

defendant was facing under N.J.S.A. 2C:43-6.4, as well as how




                                               11                                  A-0722-12T4
they   would   affect     defendant   as   a   New   York    resident,    before

engaging in plea negotiations with the State.                  This is not a

case involving the retroactive application of a new rule of law.

Cf.    Chaidez v United States, 568 U.S. __, 133 S. Ct 1103, 185

L. Ed. 2d 149 (2013); State v. Gaitan, 209 N.J. 339 (2012),

cert. denied, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

       We thus remand this matter for the PCR judge to determine

whether    "'there   is    a   reasonable      probability    that,   but      for

counsel's errors, [the defendant] would not have pled guilty and

would have insisted on going to trial.'"               Nunez-Valdez, supra,

200 N.J. at 138 (quoting State v. DiFrisco, 137 N.J. 434, 457

(1994)).

       Reversed and remanded.




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