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Darren Harvey, 36, served less than five years after pleading guilty in Superior Court in Hackensack to second-degree sexual assault, in addition to drug and weapons offenses from a separate incident.
Harvey argued in court papers that he understood that he would have to register as a Megan’s Law offender but wasn’t aware at the time that he was also agreeing to community supervision for life – even though a three-page plea form that he signed on Sept. 3, 1997 included a “YES” circled for that question, the New Jersey Appellate Division wrote in its decision.
Harvey was sentenced on Jan. 16, 1998, but a “thorough search” of a storage facility “failed to locate [sic] a copy of the video tape and as a result no transcript can be prepared,” says the decision, issued this morning.
Instead, the appeals panel received a judgment of conviction, signed by the sentencing judge on March 25, 1999, which said a maximum five-year sentence was imposed on Jan. 16, 1998. However, the box next to the statement “You are hereby sentenced to community supervision for life” wasn’t marked, the appeals panel decision says.
On May 21, 2003, the state Parole Board’s acting chairman wrote to the sentencing judge, nothing that a “question has arisen” whether lifetime community supervision – a Megan’s Law requirement in many cases – applied to Harvey.
The sentencing judge wrote back on June 3, 2003 that the provision applied, then issued an amended version in which the community supervision requirement was checked, the decision says.
“The record does not indicate when defendant first learned of the second amended [judgment of commitment] or whether defendant was notified by the New Jersey State Parole Board that he was, in fact, subject to community supervision for life,” the appeals judges wrote.
Harvey petitioned the court on Dec. 10, 2009.
“I took a plea bargain for 5 years with three year mandatory min — Megan’s Law,” he wrote. “State amended my judgment of conviction 5 years later and gave me a different sentence with more responsibilities without my permission. And these new responsibilities I did not cop out to.”
Harvey also accused his lawyer of ineffective counsel for “failing to advise [him] that by pleading guilty to sexual assault he would be subject to community supervision for life.”
With the sentencing judge retired, another denied Harvey’s petition on Nov. 8, 2010 without a hearing.
Harvey then filed the appeal that produced today’s decision.
Among other points, the Appellate Division expressed concerns that the amended judgment “may impair defendant’s rights under the double jeopardy clauses” of the U.S. However, the judges said that would have to be decided by a judge in Hackensack.
They also are leaving it to Bergen’s Superior Court to judge Harvey’s claim of ineffective counsel.
“There should be an appropriate effort made to reconstruct the sentencing transcript … to ascertain when defendant was first informed of the 2003 amendment,” the higher court explained.
“Such facts will bear upon the double jeopardy issue, the ineffective assistance of counsel claim and application of the time-bar,” the judges wrote. “Moreover, different consequences may obtain if defendant is found to be entitled to relief under a double jeopardy claim, as opposed to an ineffective assistance of counsel claim.
“A constitutional violation of double jeopardy protection would require vacating the imposition of community supervision for life,” they added. “On the other hand, a successful ineffective assistance of counsel claim may require vacating the plea.”
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