On certification to the Superior Court, Appellate Division.
The issue in this appeal is whether, prior to accepting a guilty plea to a charge of fourth-degree criminal sexual contact, the trial court must inform the defendant that as a consequence of the plea, he may be subject to civil commitment for an indefinite period of time pursuant to the New Jersey Sexually Violent Predator Act (Act), N.J.S.A. 30:4-27.24 to -27.38, after the completion of his sentence.
The defendant in this case, Jerry L. Bellamy, was indicted for second-degree sexual assault (Count One) and fourth-degree criminal sexual contact (Count Two) based on events in his Atlantic City motel room on April 12, 1999. An eighteen-year-old woman reported to the police that defendant had pushed her down on the bed and forced her to engage in sexual intercourse with him after she refused to have sex with him. According to defendant, the woman agreed to have sex with him for money, and the sex they had was consensual.
Before trial, defendant entered into a plea agreement with the State wherein he agreed to plead guilty to the fourth-degree charge in exchange for the State agreeing to dismiss the charge of second-degree sexual assault and recommending an eighteen-month jail sentence. In the plea proceeding, defendant admitted using physical force against the victim and that she had not willingly had sex with him. The trial court accepted the plea and imposed the recommended sentence, subject to a psychological/psychiatric examination once defendant was paroled.
One week before the completion of defendant's eighteen-month sentence, the New Jersey Attorney General filed a petition seeking defendant's civil commitment as a sexually violent predator pursuant to the Act. Defendant had previously served a five-year sentence based on a plea to second-degree sexual assault; a later charge of criminal sexual contact was amended to harassment and ultimately dismissed in 1998. The civil commitment judge found that defendant qualified for commitment under the Act and committed him. Defendant remains committed.
Defendant appealed his conviction for fourth-degree criminal sexual contact and argued that he should be allowed to withdraw his guilty plea because the trial judge who accepted his plea did not tell him that if he pled guilty, he would be subject to possible indefinite civil commitment under the Act. He also asserted that his attorney was ineffective for failing to inform him of the possibility of civil commitment.
The Appellate Division affirmed the conviction, holding that there was no basis for withdrawal of defendant's plea because civil commitment under the Act was neither a direct nor penal consequence of the conviction of fourthdegree criminal sexual contact. The court concluded that the trial court had no obligation to inform defendant about potential commitment under the Act. The Appellate Division affirmed the conviction without prejudice to defendant raising the issue of ineffective assistance of counsel in a post-conviction relief proceeding.
The Supreme Court granted defendant's petition for certification.
HELD: Before a court accepts a guilty plea to an offense that could lead to civil commitment under the New Jersey Sexually Violent Predator Act, fundamental fairness requires that the court inform the defendant of the possible consequences of the plea, including the potential of lifelong civil commitment. Because of the disruptive effect wholly retroactive application of this new rule would have on the administration of justice, the court's decision applies to defendant Bellamy and to cases in which direct review has not been concluded.
1. Before accepting a guilty plea, a trial court must be satisfied the defendant understands the consequences of the plea that are "direct" or "penal." The court is not required to inform the defendant of all potential collateral consequences. A defendant may seek to withdraw a guilty plea on the grounds that he or she was misinformed of the terms of the plea agreement or that his or her reasonable expectations were violated. (pp. 6-8)
2. Civil commitment under the Act requires proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to control one's sexually harmful conduct. As the Appellate Division declared in this case, the legislative intent behind the Act is regulatory, not punitive, the focus being on the sex offender's mental condition and danger to the public. Commitment of a defendant who pleads to a predicate offense is not a direct, automatic consequence under the Act, for the Attorney General must prove by clear and convincing evidence that the offender's mental condition creates a likelihood of further sexually violent behavior. (pp. 9-13)
3. The trial court must determine whether a consequence of a plea is direct or penal in analyzing whether a defendant must be informed of the consequence; however, when the consequence of a plea may be so severe that a person may be confined for the remainder of his or her life, fundamental fairness requires that the trial court inform a defendant of the possible consequence. The failure of the court or defense counsel to inform defendant of the possible consequence deprives the defendant of information needed to make a knowing and voluntary plea. (pp. 13-15)
4. In future cases, prior to accepting a plea to a predicate offense under the Act, the trial court should ensure that a defendant understands that as a result of the plea, there is a possibility of future commitment, which may be for an indefinite period, up to and including the offender's lifetime. The Criminal Practice Committee and the Administrative Director of the Courts shall revise the plea form accordingly. (p. 15)
5. Because defendant Bellamy should have been informed of the consequences of the Act before the court accepted his plea, the case should be remanded to permit defendant to move to withdraw his plea. If the trial court is satisfied that defendant did not understand the consequences of his plea, the court shall permit defendant to withdraw the plea and shall reinstate the charges. (pp. 15-16)
6. The Court's decision in this case announces a new rule of law, and fully retroactive application of the decision would have a disruptive effect on the administration of justice because in the past, trial courts routinely have not informed defendants of the possible consequences of the plea under the Act. Accordingly, the rule announced in this case shall apply to defendant Bellamy and to those pending cases in which the defendant has not exhausted all avenues of direct review. (pp. 16-20)
The judgment of the Appellate Division is REVERSED and the case is REMANDED to the trial court for proceedings consistent with the opinion.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, and ALBIN join in JUSTICE WALLACE's opinion. JUSTICE VERNIERO did not participate.
The opinion of the court was delivered by: Justice Wallace
The issue in this appeal is whether, prior to accepting a guilty plea relating to a fourth-degree criminal sexual contact charge, the trial court must inform defendant of the civil commitment possibilities of the New Jersey Sexually Violent Predator Act (Act), N.J.S.A. 30:4-27.24 to -27.38. We hold that fundamental fairness requires that prior to accepting a plea to a predicate offense, the trial court must inform a defendant of the possible consequences under the Act.
In the early morning of April 12, 1999, defendant, Jerry L. Bellamy, and the eighteen-year-old victim went to defendant's motel room in Atlantic City. The victim left the room later that morning and reported to the police that, after she refused to have sex with defendant, he pushed her down on the bed and forcibly engaged in sexual intercourse with her.
The police went to defendant's motel room to investigate the alleged incident. Defendant stated that the victim agreed to have sex with him for money. However, he claimed she demanded more money than originally agreed upon, so he went to the motel desk clerk to recover his ten-dollar telephone deposit. He then returned to the room wherein he engaged in consensual sex with the victim.
Defendant was indicted for second-degree sexual assault (Count One), N.J.S.A. 2C:14-2c, and fourth-degree criminal sexual contact (Count Two), N.J.S.A. 2C:14-3b. Prior to trial, defendant entered into a plea agreement with the State wherein he agreed to plead guilty to Count Two in exchange for the State agreeing to dismiss Count One and recommending an eighteen-month jail sentence. When asked by the trial court for the factual basis for his plea, defendant stated: "I did it [sic] purpose of - of money. I mean it was sexual money. We didn't have sex." Defendant then claimed that the sex was consensual, and the court suggested that defense counsel confer with his client about his plea. Defense counsel represented that defendant was confused and thought he was being asked to admit to the more serious sexual assault charge in Count One. Defendant then admitted using physical force and the following colloquy occurred between the trial court and defendant: