                                      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                                NOT FOR PUBLICATION WITHOUT THE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-1325-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LAMAR GARNER,

     Defendant-Appellant.
______________________________

                   Submitted December 16, 2019 – Decided January 24, 2020

                   Before Judges Ostrer and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 04-10-1475.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Karen A. Lodeserto, Designated Counsel, on
                   the brief).

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Ali Y. Ozbek, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Lamar Garner appeals from a May 15, 2018 order denying,

without an evidentiary hearing, his petition for post-conviction relief (PCR). We

affirm.

                                       I.

      Garner collaterally challenges his 2006 conviction, after a guilty plea, of

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4). Defendant admitted that

when he was twenty-seven years old, he sexually penetrated a child over thirteen

but less than sixteen years of age. Under his plea agreement, the court sentenced

defendant to a seven-year term, subject to Megan's Law, N.J.S.A. 2C:7-1 to -23,

and parole supervision for life, N.J.S.A. 2C:43-6.4. A pre-sentence evaluation

by the Adult Diagnostic and Treatment Center (ADTC) at Avenel concluded that

defendant's crime was not part of a repetitive, compulsive pattern of criminal

sexual behavior, and he was not eligible for sentencing under the New Jersey

Sex Offender Act, N.J.S.A. 2C:47-1 to -10. Consistent with the plea agreement,

the court dismissed multiple counts charging first- and second-degree sexual

assaults and related offenses.

      Defendant filed his petition in 2017, long after he completed his sentence.

He was incarcerated, however, awaiting a parole hearing apparently related to a

charge he violated a condition of parole supervision for life. In his petition,


                                                                         A-1325-18T4
                                       2
defendant contended that his attorney provided ineffective assistance of counsel,

by failing to advise him of the consequences of his plea. He contended that if

properly advised, he would have gone to trial. Defendant did not expressly

identify the consequences of which he was unaware. However, in a supporting

letter, he implied that he was unaware of the consequences of parole supervision,

and the possibility of civil commitment. He stated that an attorney was obliged

to inform a defendant that there was "a possible [sic] of future commitment, and

that such commitment may be for an indefinite period up to and including

lifetime commitment."

      The PCR court denied the petition on the merits.1 The court noted that

under the familiar two-pronged test of Strickland v. Washington, 466 U.S. 668

(1984), defendant had to show both deficient performance and prejudice to

establish he was denied his constitutional right to effective assistance of counsel.

Based on the record of the plea hearing, and prior plea discussions, the PCR

court found that defendant was informed of the consequences of his plea.

      The PCR court noted that at a status conference over a month before his

actual guilty plea, defendant confirmed his attorney's statement, on the record,


1
  The court decided to consider the petition, despite its late filing. Cf. R. 3:22-
12 (stating that a petition must generally be filed within five years of judgment).
The State does not challenge that determination. So, we do not address it.
                                                                            A-1325-18T4
                                         3
that he had rejected an earlier plea proposal – that he plead to second-degree

endangering the welfare of a child and receive an eight-year flat term – because

he was concerned about the consequences of Megan's Law and community

supervision for life. At that same status conference, in the course of explaining

the potential sentence if convicted after trial, the judge distinguished between

community supervision or parole supervision for life, and the periods of parole

supervision that would apply to defendant under the No Early Release Act,

N.J.S.A. 2C:43-7.2, if he were convicted of certain counts of the indictment.

      The PCR court noted that at the subsequent plea hearing, the judge

explained that defendant would be subject to Megan's Law and parole

supervision for life, and described the consequences of that. The PCR court

noted that defendant acknowledged that he had sufficiently discussed his case

with his attorney. The PCR court also noted that defendant acknowledged, in

the supplemental forms for pleas to sexual offenses, that he would be subject to

community supervision for life, which the forms described. The PCR court

concluded that there was no issue of material fact that justified an evidentiary

hearing.2


2
   The indictment originally charged defendant with offenses that occurred
between March 2003 and May 2004, in other words, before and after the January


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                                       4
      On appeal, defendant presents the following point for our consideration:

            THE PCR COURT ERRED IN DENYING
            DEFENDANT AN EVIDENTIARY HEARING
            BECAUSE TESTIMONY IS NEEDED REGARDING
            THE SUBSTANCE OF THE LEGAL ADVICE PLEA
            COUNSEL    PROVIDED     TO   DEFENDANT
            REGARDING    A    [SIC]    THE   PENAL
            CONSEQUENCES OF HIS GUILTY PLEA.

                                       II.

      We review de novo a PCR court's factual findings made without an

evidentiary hearing. State v. Harris, 181 N.J. 391, 421 (2004). We also owe no

deference to the trial court's conclusions of law. Ibid. That said, we are guided

by the same Strickland test that the PCR court enunciated. Having carefully

reviewed the record, we discern no basis to depart from the trial court's finding

that defendant knew he would be subject to parole supervision for life, and what

that would entail.



14, 2004 effective date of the 2003 amendment to Megan's Law, N.J.S.A. 2C:43-
6.4, which changed supervision from "community supervision for life" to
"parole supervision for life. L. 2003, c. 267, § 1. The record includes references
to both forms of supervision. Ultimately, the indictment was amended and
defendant pleaded guilty to committing an offense after January 14, 2004. His
main plea form disclosed that the State sentencing recommendation would
include parole supervision for life, although the supplemental plea form
addressed defendant's understanding of community supervision for
life. Defendant was sentenced to parole supervision for life. He raises no issue
directed to the discrepancy. Rather, he contends more generally that he was
unaware of the consequences of parole supervision for life.
                                                                          A-1325-18T4
                                        5
      We recognize that the record does not reflect that the trial court, in

accepting defendant's guilty plea, confirmed that defendant understood the

possibility of civil commitment as a sexually violent predator. See State v.

Bellamy, 178 N.J. 127, 138 (2003) (holding that, as a matter of fundamental

fairness, a defendant must be informed of the potential of civil commitment

under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38,

notwithstanding that it is a collateral consequence of a conviction for certain

sexual offenses).     However, in a supplemental plea form, defendant

acknowledged the risk of civil commitment.

      Furthermore, there is no evidence that, even if defendant were unaware of

the risk, he suffered any prejudice. Before sentencing, the ADTC determined

defendant was not a compulsive sexual offender. Defendant does not contend

that the State sought his commitment, or alleged he "suffers from a mental

abnormality or personality disorder that makes [him] likely to engage in acts of

sexual violence if not confined in a security facility for control, care and

treatment." N.J.S.A. 30:4-27.26. The lack of prejudice dooms defendant's claim

of ineffective assistance of counsel. It also defeats any claim that his plea did

not comport with Rule 3:9-2.




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                                       6
      To establish his ineffective-assistance-of-counsel claim, defendant must

demonstrate a "reasonable probability that, but for counsel's errors," that is, the

alleged failure to discuss the risk of civil commitment, "he would not have

pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474

U.S. 52, 59 (1985). "[A] petitioner must convince the court that a decision to

reject the plea bargain would have been rational under the circumstances."

Padilla v. Kentucky, 559 U.S. 356, 372 (2010). It is implausible in the extreme

that defendant would have gone to trial to avoid the risk of civil commitment.

That is so because the risk of commitment was apparently low, and the risk of

conviction was extremely high.        As for the latter, defendant apparently

confessed that he sexually penetrated his victim. Also, the record refers to a

DNA test that confirmed that defendant impregnated his victim, based on the

DNA analysis of defendant and the victim's aborted fetus.

      Under Rule 3:9-2, before accepting a guilty plea, a court must be satisfied

that the defendant understands the consequences of the plea.         A failure to

comport with the Rule may be raised on direct appeal, in a motion to withdraw

a plea, or in a petition for PCR. See State v. Urbina, 221 N.J. 509, 527-28 (2015)

(addressing failure to comply with Rule 3:9-2, in that case, the requirement to

secure an adequate factual basis for the plea). As noted, although the risk of


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                                        7
civil commitment is not a direct penal consequence of a sexual offense

conviction, fundamental fairness requires that a defendant understand the risk.

Bellamy, 178 N.J. at 138. Nonetheless, "[t]o vacate his plea, a defendant must

show that he or she was prejudiced by enforcement of the agreement." Id. at

135. In other words, "the plea should not be vacated if knowledge of the missing

conditions would not have affected defendant's decision to plead."            Ibid.

Defendant has failed to demonstrate that his alleged ignorance of the risk of civil

commitment would have affected his decision to plead.

      The PCR court correctly denied defendant's request for an evidentiary

hearing. "A defendant shall be entitled to an evidentiary hearing" before a PCR

court if he or she establishes a "prima facie case in support of post -conviction

relief," there exist "material issues of disputed fact that cannot be resolved by

reference to the existing record," and a "hearing is necessary to resolve the

claims for relief." R. 3:22-10. Defendant has met none of those preconditions.

      Finally, we do not reach defendant's argument, presented for the first time

on appeal, that he is entitled to withdraw his plea based on the four factors in

State v. Slater, 198 N.J. 145, 157-58 (2009). Defendant's petition for post-

conviction relief under Rule 3:22 is distinct from a motion to withdraw a plea

under Rule 3:21-1. See State v. O'Donnell, 435 N.J. Super. 351, 369-73 (App.


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                                        8
Div. 2014) (contrasting the two forms of relief). The two forms of relief

vindicate different interests. Ibid. Different considerations determine whether

the relief should be granted. Ibid. We generally decline to consider questions

or issues not first presented in the trial court when an opportunity for such a

presentation is available, unless the issues raised on appeal concern jurisdiction

or matters of great public interest. State v. Robinson, 200 N.J. 1, 20 (2009)

(citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).              As

defendant's contentions do not satisfy either Nieder exception, we shall not reach

his newly raised contention that he should be permitted to withdraw his 2005

plea.

        Affirmed.




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