On appeal from Superior Court of New Jersey, Law Division, Camden County, SVP-150-01, in A-1185-01, and from Middlesex County, SVP-109-00, in A-2279-01.
Before Judges King, Cuff and Winkelstein.
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued A-1185-01 on March 20, 2002
Submitted A-2279-01 on April 5, 2002
C.M. and D.L. have each appealed from an order of commitment issued pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. C.M. has filed a pro se motion to proceed as an indigent and for appointment of appellate counsel and free transcripts. D.L. has moved pro se to proceed as an indigent and for free transcripts. The motions have been consolidated for purposes of this opinion. Orders permitting both C.M. and D.L. to proceed as indigents have previously been entered. The issues we address in this opinion are whether an indigent committed under the SVPA (1) has a right to appointed counsel on appeal; (2) is entitled to a free transcript; and, (3) if so, who will be responsible to bear the cost of the transcript. We conclude that because a commitment under the SVPA implicates a constitutionally protected liberty interest, the committed indigent has a right to appointed counsel on appeal and is entitled to a transcript at the Public Defender's expense.
A "sexually violent predator" is defined as:
[A] person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment. [N.J.S.A. 30:4-27.26(b).]
The SVPA provides for the commitment of sexually violent predators in a separate and secure facility from those committed under the general voluntary civil commitment statutes. See N.J.S.A. 30:4-27.25d. Persons committed under the SVPA are also "housed and managed separately from offenders in the custody of the Department of Corrections." N.J.S.A. 30:4-27.34a. The State has designated the Special Treatment Unit, also referred to as the Northern Regional Unit, located at Kearny, Hudson County, as the facility to house sexually violent predators under the SVPA. Although the Department of Corrections is responsible for the operation of the facility, it is the Division of Mental Health Services in the Department of Human Services that provides treatment which "shall be appropriately tailored to address the specific needs of sexually violent predators." N.J.S.A. 30:4-27.34b. In In re Commitment of M.G., 331 N.J. Super. 365, 373 (App. Div. 2000), Judge Carchman pointed out the differences between the Kearny facility *fn1 and other therapeutic placement facilities which house those persons committed under the general voluntary commitment laws:
Persons committed to Kearny are housed in locked rooms and monitored by uniformed correctional officers, some carrying weapons, who are employed by the Department of Corrections. Residents leaving the facility are shackled with handcuffs to waist chains and also with ankle cuffs. There are no opportunities at Kearny to advance to a less restrictive physical structure.
To commit a person involuntarily under the SVPA, "the State must establish by clear and convincing evidence that he suffers from a mental abnormality or personality disorder which makes him likely to engage in acts of sexual violence if not confined." In re Commitment of W.Z., 339 N.J. Super. 549, 570 (App. Div.) (citing N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.32a), certif. granted, 169 N.J. 611 (2001). Once confined, if a person's treatment team "determines that the person's mental condition has so changed that the person is not likely to engage in acts of sexual violence if released," it "shall" recommend that the Department of Human Services authorize the person to petition the court for discharge. N.J.S.A. 30:4-27.36a. Otherwise, the person is afforded an annual court review hearing for the continued need for involuntary commitment. N.J.S.A. 30:4-27.35. In the absence of extraordinary circumstances, additional review hearings shall not be held more than once every thirty days. Ibid. Once committed under the SVPA, a person remains confined until a court determines that the person is no longer a sexually violent predator. N.J.S.A. 30:4-27.32b. Consequently, periods of confinement under the SVPA are indefinite.
The SVPA includes various safeguards for the person to be committed, including the right to be present at the court hearings, the right to present evidence and cross-examine witnesses, the right to a hearing in camera and, if indigent, the right to appointed counsel at the commitment and review hearings. N.J.S.A. 30:4-27.31. All court hearings shall be transcribed. N.J.S.A. ...