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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

WILLIAM SMULLEN,

Defendant-Appellant.

_____________________________________

Submitted October 17, 2013 – Decided

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 

August 15, 2014

APPROVED FOR PUBLICATION

August 15, 2014

APPELLATE DIVISION
2 A-0722-12T4

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)
3 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.
4 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.
5 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 
6 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 
7 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 
8 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)
9 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.
10 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 
11 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 
12 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.