STATE OF NEW JERSEY VS. BRIAN K. LINDSEYÂ (00-04-0490, OCEAN COUNTY AND STATEWIDE)(RECORD IMPOUNDED), A-3289-15T4

Background

Defendant Brian K. Lindsey pled guilty (2001) to second-degree sexual assault and accepted a plea agreement resulting in a nine-year sentence (final sentencing 2003/2005) subject to NERA. ADTC evaluated him as showing repetitive/compulsive sexual behavior and recommended treatment at Avenel; he later became SVPA-committed upon parole eligibility in 2008.
Defendant filed a pro se PCR petition in 2013 alleging ineffective assistance of trial counsel: counsel failed to explain the possibility of civil commitment under the SVPA and failed to obtain testing to assess defendant’s developmental disability/competence to plead.
At the PCR evidentiary hearing trial counsel (no specific recollection of the case) testified about his long-standing habit/custom of reviewing plea forms and consequences (including SVPA) with clients; the judge admitted this habit evidence under N.J.R.E. 406.
The plea colloquy and plea forms contained specific advisals about possible SVPA civil commitment; defendant had initialed and signed the forms and made statements on the record indicating understanding and competence (judge explicitly found defendant competent during the plea colloquy).
The PCR judge found counsel credible and defendant not credible, concluding the plea was knowing and voluntary, counsel’s habit evidence was admissible, and counsel was not ineffective for failing to secure further testing; this appeal affirms.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Lindsey)	Held
Admissibility of counsel’s testimony about habit/custom under N.J.R.E. 406	Habit evidence from an experienced attorney is admissible to prove routine review of plea forms	Counsel’s testimony was insufficient to prove habit; admission was improper	Court upheld admission: attorney’s long experience and thousands of pleas made habit testimony admissible and properly considered with the plea transcript
Adequacy of plea advisement regarding possible SVPA civil commitment	The plea form, plea colloquy, and prosecutor’s sentencing remarks show defendant was advised and understood SVPA consequences	Defendant contends he was not advised/ did not understand civil commitment because of developmental disability	Court held record (initialed form, colloquy, counsel’s habit, sentencing remarks) shows defendant was informed and plea was knowing and voluntary
Need for competency testing/evaluations before accepting plea	No testing was required where judge observed competent responses and no prior adjudication of incompetence; funding for experts exists but was not used	Counsel should have arranged testing to determine extent of developmental disability and competence to plead	Court held trial judge’s colloquy and findings of competency negated the need for additional testing; defendant’s bare assertions insufficient to show prejudice
Prejudice and Strickland/Hill standard (effect on plea)	State: no reasonable probability outcome would differ; plea was knowing/voluntary	Defendant: but for counsel’s failures he would have gone to trial	Court applied Strickland/Hill and concluded defendant failed to prove deficient performance or prejudice; PCR denial affirmed

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (established two-prong test for ineffective assistance: deficient performance and prejudice)
Hill v. Lockhart, 474 U.S. 52 (applies Strickland framework to challenges to guilty pleas)
State v. Fritz, 105 N.J. 42 (New Jersey adoption of Strickland standard)
State v. Bellamy, 178 N.J. 127 (defendant must be advised of possibility of civil confinement under SVPA)
McDarby v. Merck & Co., Inc., 401 N.J. Super. 10 (trial court’s admission of habit/routine-practice evidence reviewed for abuse of discretion)