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State v. Borden

September 26, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALBERT H. BORDEN, JR., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Accusation No. 01-01-84-A.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2007

Before Judges Graves and Alvarez.

Defendant Albert H. Borden, Jr., appeals from an order denying his petition for post-conviction relief (PCR) entered on January 20, 2006. We affirm.

On January 12, 2001, defendant pled guilty to third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). Pursuant to a negotiated plea, the State agreed to recommend that defendant's sentence would be limited to no more than 364 days in the Burlington County Jail with a concurrent sentence for violating probation.

At the sentencing hearing on April 12, 2001, Judge Almeida rejected the plea agreement, and he advised defendant of his right to withdraw his guilty plea, reinstate his not guilty plea, and proceed to trial. The judge also advised defendant that an evaluation conducted by the Adult Diagnostic and Treatment Center (ADTC) had determined he qualified as a repetitive and compulsive sex offender within the meaning of N.J.S.A. 2C:47-3. Nevertheless, defendant informed the court that he did not want to challenge the ADTC evaluation, and he indicated he wanted to proceed with sentencing. Defendant was sentenced to a four-year prison term to be served at the ADTC in Avenel, with a concurrent eighteen-month sentence for violating probation. Defendant was advised he had forty-five days to file an appeal, but he elected not to do so.

Subsequently, on December 11, 2003, the New Jersey Supreme Court decided State v. Bellamy, 178 N.J. 127 (2003), and on June 10, 2004, defendant filed a petition for PCR. In his petition, defendant indicated that after he served his sentence, he was involuntarily committed under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and he argued his conviction should be vacated because his trial attorney failed to advise him prior to the entry of his guilty plea that the SVPA would apply to him.

Judge Almeida's reasons for denying defendant's PCR petition included the following:

The holding in Bellamy was specifically given limited retroactive effect by our [c]court. This category of retroactivity applies only to cases pending direct review at the same [time] . . . the Bellamy decision was handed down. [Defendant] never filed a direct appeal and therefore cannot be said to have a case pending at the time Bellamy was decided.

On this appeal, defendant raises the following issues:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE TRIAL COURT FOR A HEARING TO RELEASE THE DEFENDANT FROM HIS CIVIL ...


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