On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-02-0363.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 14, 2007
Before Judges Baxter and Sabatino.
Defendant Brian Wall was indicted in 1997 and charged with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2c(2); and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a. The charges arose out of an incident in which defendant went upstairs with a twelve-year-old girl, while her mother was out of the house, and touched her buttocks for his own sexual gratification.
Pursuant to a plea agreement, defendant pled guilty on March 5, 1998 to the endangering charge. The first-degree and second-degree charges were consequently dismissed. Consistent with the plea agreement, the sentencing judge imposed a term of four years flat, which defendant served at the New Jersey State Prison. Defendant never filed a direct appeal challenging his sentence.
After finishing his prison term, defendant was civilly committed pursuant to the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24 to -27.38. Thereafter, defendant filed a motion to withdraw his 1998 guilty plea, which was denied by the Law Division on March 4, 2005.
Defendant contends that he should now be permitted to withdraw his guilty plea because he was not notified at the time of his plea that he would be subject to potential civil commitment as a sexual predator. Although no such specific notification was supplied to defendant, we agree with the Law Division that the established case law of the Supreme Court mandates the rejection of his application.
We recognize that the SVPA was not enacted and was not made effective until August 1999, a year after defendant was sentenced. However, at the time defendant entered his plea, he was advised of all potential penal consequences in effect at that time.
In State v. Bellamy, 178 N.J. 127 (2003), the Supreme Court construed the SVPA as a statute that is neither penal in nature nor one that mandates commitment as a direct consequence of an offender's guilty plea. Id. at 138. Nonetheless, the Court did hold in Bellamy that principles of fundamental fairness require a court, prior to accepting a guilty plea to a predicate offense under the SVPA, to inform a defendant of the future potential of indefinite civil commitment after the criminal sentence has run its course. Id. at 138-40. However, the Court concluded that the new rule of law announced in Bellamy was only to be given "pipeline" retroactivity, i.e., would apply only to defendants who either were awaiting trial or whose convictions were then on direct appeal as of the date that Bellamy was decided, i.e., December 11, 2003.
Defendant was sentenced on August 13, 1998. As noted, he did not file a direct appeal of his sentence. Accordingly, when Bellamy was decided, defendant's case was not in the appellate "pipeline," and the forty-five days in which he could have filed a timely appeal had long expired. Consistent with the Supreme Court's unambiguous instructions, defendant may not rely upon Bellamy to withdraw his 1998 guilty plea.
Defendant contends that the Bellamy rule nonetheless must apply to him retroactively, based on principles of fundamental fairness and due process. We cannot and do not accept that contention.
As an intermediate appellate court, we are bound by the holdings of the Supreme Court, see State v. Hill, 139 N.J. Super. 548 (App. Div. 1976), including determinations about the prospectivity or retroactivity of the Court's own decisions. Concerned about the "number and kinds of cases" that would be affected, the Court in Bellamy expressly declined to give its holding retroactive effect to persons such as defendant, because "full retroactivity . . . would have a disruptive effect on the administration of justice." Bellamy, supra, 178 N.J. at 142. We will not deviate ...