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State v. D.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 5, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
D.R., JR. DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. 84-03-0065.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 28, 2007

Before Judges Payne and Messano.

On April 11, 1984, defendant D.R., Jr. pled guilty to two counts of sexual assault in the second degree and seven counts of aggravated sexual assault in the first degree. Defendant's daughter and stepson were the victims of those crimes which occurred over a period of several years. On August 13, 1984, pursuant to the negotiated plea bargain, defendant was sentenced to an aggregate term of thirty years imprisonment with fifteen years of parole ineligibility; he served his sentence at the Adult Diagnostic and Treatment Center at Avenel.

On January 10, 2005, defendant filed a pro-se petition for post-conviction relief (PCR), the denial of which is the subject of this appeal.*fn1 He contended that although he completed his sentence, he was not released. Instead, he was involuntarily committed for an indeterminate term pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Defendant argued that he should be permitted to withdraw his guilty plea because he was never advised that involuntary civil commitment could be a collateral consequence of his conviction.

Judge Raymond A. Batten denied defendant's PCR application. The judge correctly determined that the Supreme Court's decision in State v. Bellamy, 178 N.J. 127 (2003), provided no basis for the relief sought by defendant. On April 12, 2006, the judge entered an order that denied the petition and this appeal ensued.

Defendant raises the following point on appeal:

POINT ONE

THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF AND ALLOWED THE DEFENDANT TO MOVE TO WITHDRAW HIS GUILTY PLEA BECAUSE FUNDAMENTAL FAIRNESS REQUIRES THAT THE DEFEENDANT KNOW THE CONSEQUENCES OF HIS PLEA PRIOR TO THE TRIAL COURT'S ACCEPTANCE AND BECAUSE THE LIMITED RETROACTIVITY RULE OF STATE V. BELLAMY, [] VIOLATED THE DEFENDANT'S CONSTITUTIONAL GUARANTEE TO EQUAL PROTECTION.

After careful consideration of defendant's argument, we affirm substantially for the reasons set forth in Judge Batten's oral opinion of March 29, 2006. We add only these comments.

In Bellamy, the Court held that fundamental fairness required that a defendant be advised of the possibility of involuntary civil commitment under the SVPA prior to entering a guilty plea to one of its predicate crimes. Bellamy, supra, 178 N.J. at 138. If a defendant had not been so advised, he would be permitted to withdraw his guilty plea and proceed to trial. Id. at 140. However, the Court limited the retroactive effect of its decision to "this case and those cases pending in which the defendant has not yet exhausted all avenues of direct review." Id. at 143.

Defendant asks us to avoid the limits of the Supreme Court's decision by claiming Bellamy's "pipeline retroactivity" violates his "constitutional guarantee to equal protection." He argues that Bellamy created "two classes of defendants, those who can move to withdraw a plea and those who cannot."

We conclude defendant's argument misapprehends Bellamy's basic holding. The Court only held that those defendants who could have been advised of the potential for civil commitment by pleading guilty to certain crimes, and were not so advised, had the right to retract their guilty pleas and proceed to trial. Among that universe of potential defendants, only those whose direct appeals were not exhausted were held to be within Bellamy's limited retroactive reach.

Defendant herein, however, could not have been advised of the potential for civil commitment at the time he entered his guilty plea because the SVPA would not be enacted for more than a decade thereafter. Therefore, even if we accept defendant's argument that Bellamy created two classes of defendants, the fact remains that he belongs to neither.

Defendant's real argument, as Judge Batten noted, is with the application of the SVPA to defendants, like himself, who pled guilty prior to its enactment. That issue, however, has been decided long ago. See In Re J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004)(rejecting any ex post facto challenge to the SVPA because commitment under the statute is civil and not penal in nature).

Another reason why we reject defendant's invitation to expand Bellamy's reach is the Court's express conclusion "that full retroactivity . . . would have a disruptive effect on the administration of justice." Id. at 142. We are bound by the decisions of the Supreme Court and are not free to ignore them or create a "drastic change in the law." Rodriguez v. Cordasco, 279 N.J. Super. 396, 405 (App. Div.), certif. denied, 142 N.J. 451 (1995). Defendant exhausted his rights to direct appeal long ago. Therefore, the relief accorded by Bellamy simply does not apply to him.

Affirmed.


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