On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-95-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Weissbard and Lihotz.
R.J.M. appeals from an order of June 22, 2005, continuing his commitment to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.
R.J.M. was initially committed to the STU on July 25, 2000, after serving ten years of a sixteen-year sentence at the Adult Diagnostic and Treatment Center (ADTC), imposed on his conviction for aggravated sexual assault on a three-year-old child. His commitment was continued as a result of consent agreements on July 26, 2001, and January 29, 2002, and after a review hearing on July 30, 2002. Because of the pendency of R.J.M.'s appeal of the July 30, 2002 order, which we affirmed on July 26, 2004, In re Civil Commitment of R.J.M., Docket No. A-0343-02T2, (App. Div.) (slip op.), no hearings took place until June 20, 2005, the matter under review.
On appeal, R.J.M. presents a single argument for our consideration:
RETROACTIVE APPLICATION OF THE SEXUALLY VIOLENT PREDATOR ACT TO R.J.M. VIOLATED FUNDAMENTAL FAIRNESS AND THE PROSCRIPTION AGAINST EX POST FACTO LAWS IN THE NEW JERSEY CONSTITUTION.
Perhaps because the evidence is so overwhelming, R.J.M. does not dispute the conclusion that he qualifies for commitment under the SVPA. In addition to his 1989 conviction, R.J.M. committed sexual offenses against young children in 1981, when he was only twelve-years-old, and in 1984, when he was fifteen. For the later offense, in North Carolina, he was sentenced to three years incarceration. In addition, R.J.M. has admitted to at least sixty victims, ranging in age from one to fifteen- years-old. Indeed, R.J.M. does not contest his eligibility for commitment, or the judge's June 22, 2005 findings in this regard. Nevertheless, the State has spent virtually its entire thirty-nine page brief arguing in support of those findings. With respect to the only argument actually presented in this appeal, concerning the ex post facto prohibition, the State has deigned to provide about one page of argument. While the State prevails on this appeal, it does so despite its presentation. This is not the first time that R.J.M. has raised an eX post facto argument. In our unpublished decision affirming his July 30, 2002 commitment, we responded to his argument at length, stating:
Appellant contends that his confinement under the Act violates the Ex Post Facto Clause of the New Jersey Constitution. This argument was also rejected in [In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (2003), certif. denied, 179 N.J. 312 (2004)].
The New Jersey Constitution prohibits passage by the Legislature of "ex post facto" laws. N.J. Const. art. 4, § 7, ¶ 3. The prohibition applies to laws that "change the punishment, and inflict a greater punishment, than the law annexed to the crime, when committed." Calder v. Bull, 3 U.S. 386, 390, 1 L.Ed. 648, 650 (1798) (quoted in Doe v. Poritz, 142 N.J. 1, 47 (1995)). The determination of whether a law violates the ex post facto provision is dependent on whether it inflicts "punishment." Doe, supra, 142 N.J. at 46.
In Doe, the Court considered the constitutionality of the sexual offender registration and community notifications laws known as "Megan's Law." Id. at 12. The plaintiff contended the laws were unconstitutional in part because they amounted to additional "punishment." Id. at 40-77. The Court set forth what it ...