February 6, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF T.J.T. SVP #226-02
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-226-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 31, 2007
Before Judges Parker and R. B. Coleman.
T.J.T. appeals from a judgment entered on May 21, 2007 continuing his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.
On February 4, 1992, T.J.T. was arrested and charged with first degree attempted murder, second degree aggravated assault, three counts of first degree sexual assault, third degree terroristic threats, fourth degree unlawful possession of a weapon and third degree possession of a weapon for unlawful purpose. Pursuant to a plea agreement, on September 30, 1992 he entered a guilty plea to two counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4), a sexually violent offense as defined by N.J.S.A. 30:4-27.26. He also pled guilty to second degree aggravated assault, N.J.S.A. 2C:12-1b(1); and third degree terroristic threats, N.J.S.A. 2C:12-3. He was sentenced to an aggregate term of fifteen years. Ibid.
In January 2002, two weeks prior to T.J.T. serving the maximum time on his sentence, the Attorney General filed a petition for his commitment pursuant to the SVPA. Two clinical psychiatrists certified that T.J.T. had a mental abnormality or personality disorder that "makes [him] likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment."
An order entered on January 23, 2002, temporarily committed T.J.T. to the Special Offender Unit pending a final commitment hearing. After a final commitment hearing on February 8, 2002, the trial court found by clear and convincing evidence that T.J.T. was a sexually violent predator in need of involuntary civil commitment. Judgment was entered committing him to the STU. We affirmed on appeal. In re the Civil Commitment of T.J.T., SVP-226-02, Docket No. A-1335-02T2 at 5 (App. Div. July 12, 2004).
After a review hearing was held on July 14, 2005, the court found that T.J.T. continued to be a sexually violent predator and ordered him to remain confined to the STU. We affirmed this judgment on appeal, as well. In re the Civil Commitment of T.J.T., SVP-226-02, Docket No. A-6138-04T2 at 4 (App. Div. June 5, 2006).
A second review hearing was held on May 18, 2007. On May 21, 2007 the court rendered its decision finding that T.J.T. continues to be at risk to reoffend and entered a judgment ordering him to remain confined to the STU. T.J.T. now appeals the May 21, 2007 judgment.
In addition to counsel's oral argument, T.J.T. submitted a pro se brief in which he argues:
A PLEA AGREEMENT IS A CONTRACT/AGREEMENT AND THE STATE OF NEW JERSEY IS IN BREACH OF THAT CONTRACT/AGREEMENT
PETITIONER WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW, AS GUARANTEED BY THE STATE AND FEDERAL CONSTITUTION 14TH AMENDMENT
THE PETITIONER'S CONVICTION AS WELL AS THE COMMITMENT ORDER SHOULD BE SET ASIDE BECAUSE HE WAS NOT ADVISED THAT THE SEXUALLY VIOLENT PREDATORS ACT WOULD APPLY TO HIM
THE APPLICATION OF THE SVPA TO THE PETITIONER VIOLATES THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO LAWS
APPLICATION OF THE SVPA TO THE PETITIONER IS A DIRECT, RATHER THAN COLLATERAL, CONSEQUENCE OF HIS GUILTY PLEA
T.J.T. first argues in his pro se brief that the 1992 plea agreement he entered into with the State is a contract that the State has breached by not releasing him after serving his required term of incarceration. His reliance on contract law is not relevant to the civil commitment process, however.
We note initially that commitments under the SVPA are civil proceedings, In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 97 (App. Div. 2007), certif. granted 193 N.J. (2007), and a civil commitment is not punitive in nature. The SVPA provides for the involuntary civil commitment of an individual who has been convicted of a sexually violent offense and "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26; N.J.S.A. 30:4-27.28.
The State's authority "to civilly commit citizens is an exercise of its police power to protect the citizenry and its parens patriae authority to act on behalf of those unable to act in their own best interest." In re Commitment of P.C., 349 N.J. Super. 569, 579 (App. Div. 2002). "The State's interest in so protecting society is legitimate and substantial." Id. at 580 (citing Kansas v. Crane, 534 U.S. 407, 409 , 122 S.Ct. 867, 868, 151 L.Ed.2d 856, 860 (2002)).
While a plea agreement is analyzed under contract law, State v. Pennington, 154 N.J. 344, 362 (1998), and the terms and conditions of such an agreement must be "meticulously carried out," State v. Jones, 66 N.J. 524, 525-26 (1975), "neither a county prosecutor nor a defendant may by plea agreement frustrate the Attorney General's authority to protect the public from sexually violent predators." In re Commitment of P.C., supra, 349 N.J. Super. at 578.
Moreover, the SVPA was "intended to protect society from persons whose mental abnormalities or personality disorders . . . make them likely to engage in repeat acts of predatory sexual violence if not treated for their mental conditions." N.J.S.A. 30:4-27.25(a). Civil commitment, after release from sentences served pursuant to a plea agreement, is consistent with the purpose of the SVPA to protect the public from sex offenders at risk to reoffend. See In re Commitment of P.Z.H., 377 N.J. Super. 458, 465 (App. Div. 2005).
T.J.T. next argues in his pro se brief that he was denied due process and equal protection under the law because the State failed to serve a notice of his commitment hearing. He maintains that during the pre-commitment process in 2002, he "was interviewed, selected and transferred, while still serving a penal sentence." He alleges that he was not given prior notice of the preliminary temporary confinement hearing either by the Attorney General or the Institution Classification/Review Release Committee. As a result, he now argues he was deprived of the opportunity to secure counsel and to challenge the process at that time.
According to T.J.T., he received a notice on January 22, 2002 from the Pre-Release Committee that he would "max-out" his sentence on January 30, 2002. He claims he did not have notice of the SVPA proceedings until a hearing on January 23, 2002 during which he was informed that an order temporarily committing him to the STU had been issued. That same day, he was transferred from South Woods State Prison to the STU to await his final commitment hearing. The final commitment hearing was held on February 8, 2002. On May 21, 2002, the trial court entered judgment ordering him to involuntary civil commitment pursuant to the SVPA. Ibid.
T.J.T. incorrectly relies on N.J.S.A. 30:4-24.30 to support his argument that notice of the temporary commitment hearing is required. This statute requires notice only for the final commitment hearing not the preliminary temporary commitment hearing. N.J.S.A. 30:4-24.30 (emphasis added). There is no other provision in the SVPA requiring notice to an incarcerated individual prior to a petition for involuntary commitment. In re Commitment of M.G., 331 N.J. Super. 365, 374 (App. Div. 2000). Nothing in the legislative history indicates that the Legislature intended to require notice prior to presentation or execution of the temporary commitment order. Ibid.
In In re Commitment of M.G., cited by T.J.T., we considered whether a person, who was incarcerated or a resident in a state psychiatric facility and on Conditional Extension Pending Placement (CEPP)*fn1 status, and who was subject to the SVPA, was entitled to notice prior to temporary commitment to the STU at Kearny. 331 N.J. Super. at 370. There, appellants were all convicted sexual offenders subject to the SVPA. Ibid. After completing their terms of incarceration, they were involuntarily committed to the state psychiatric facility at Greystone. Ibid. Greystone was not an SVP-designated facility.
The appellants were placed on CEPP status at Greystone, designating them as individuals legally entitled to leave the mental hospital because they were not considered dangerous. Id. at 378. Although theoretically discharged, they remained confined pending further court order on the ground that they were "incapable of competently exercising" the right to be discharged because of a diminished capacity to survive in the outside world. Ibid.
We expressed concern that transferring the appellants to an SVP-designated facility without prior notice would affect their private interests as related to their current status as patients because they would be stripped of their CEPP status. Id. at 379. In being transferred, the status of each individual would change from a CEPP patient in a psychiatric hospital to placement in a maximum security facility. Id. at 378-79. We likened the involuntary commitment of individuals confined on CEPP status in an SVP-designated facility to an involuntary commitment of prisoners to a mental institution. Ibid. As such, we found that the appellants had "a significant liberty interest in remaining in a CEPP-status, and appropriate notice would significantly lessen the risk of erroneous placement at Kearny." Ibid. We held only that the State must provide notice of a temporary commitment hearing to individuals who are in a state facility on CEPP status. Id. at 386. T.J.T. was not confined on CEPP status at a state psychiatric facility at the time of the preliminary temporary commitment and the requirement for the notice of the preliminary hearing was not required. He was entitled only to notice of the final hearing. N.J.S.A. 30:4-27.30.
T.J.T. next argues in his pro se brief that at the time he entered into the plea agreement with the State in 1992 he was not advised that he risked civil commitment as a consequence of pleading guilty to a sexual offense. The SVPA was not in existence at the time of his plea.
The SVPA was adopted in 1998, effective August 1, 1999, and trial courts must now inform defendants of possible consequences under the SVPA before accepting a plea to a predicate offense. State v. Bellamy, 178 N.J. 127, 143 (2003). This applies only to prospective cases, however, and cases that were in the review pipeline at the time the SVPA was enacted. Ibid. In short, there is no merit to this argument.
T.J.T. further argues in his pro se brief that the retroactive application of the SVPA represents "a violation of the constitutional prohibition against ex post facto laws." He contends that the SVPA is punitive in nature rather than regulatory or remedial.
In Kansas v. Hendricks, 521 U.S. 356, 117 S.Ct. 2072, 138 L.Ed. 2d 501 (1997), the United States Supreme Court reaffirmed its previous holding that the ex post facto clause in the United States Constitution pertains solely to penal statutes. 521 U.S. at 370 (citing California Dep't of Corrections v. Morales, 514 U.S. 499, 505, 115 S.Ct. 1597, 131 L.Ed. 2d 588 (1995)). The Court determined that the Kansas SVPA did not impose punishment or establish criminal proceedings because it was "a civil commitment scheme designed to protect the public from harm." Id. at 361-62. Thus the Kansas SVPA did not trigger ex post facto issues. Id. at 370-71. Moreover, it did not have a retroactive effect because the determination was made based upon the individual's current mental abnormality or personality disorder. Id. at 371.
New Jersey's treatment of sex offenders is similar to Kansas. In the Matter of the Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). We have adopted the same principles articulated in Hendricks in rejecting ex post facto claims under the SVPA.
Ibid.; and see In re the Commitment of W.Z., 173 N.J. 109, 127 (2002).
Finally, T.J.T. argues in his pro se brief that the SVPA consequences of a guilty plea to a sexual offense are direct rather than collateral and, as such, he was entitled to notice of these consequences prior to entering his plea. This is essentially the same argument he made in his third point and does not merit further discussion in this opinion. R. 2:11-3(e)(1)(E).
At oral argument, T.J.T.'s counsel raised the issues of (1) ineffective assistance of counsel and (2) a violation of his Sixth Amendment right to represent himself.
T.J.T. maintains that counsel was ineffective in that counsel only met with him the day before the hearing. First, this is a civil proceeding in which the Sixth amendment right to counsel ordinarily does not apply. State v. P.Z., 152 N.J. 86, 111 (1997). Second, T.J.T. gave no indication as to how counsel's conduct prejudiced the outcome of the hearing against him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).
With respect to T.J.T.'s contention that he was denied his Sixth Amendment right to counsel because he was not permitted to represent himself, counsel cited Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975), in support of this argument. Again, we emphasize that Faretta addresses Sixth amendment right to counsel in the criminal context and does not apply to civil commitment proceedings pursuant to the SVPA. 422 U.S. at 807; accord Scalchi v. Scalchi, 347 N.J. Super. 493, 496 (App. Div. 2002).
We have carefully considered all of T.J.T.'s arguments - those made by counsel and those made in appellant's pro se brief in light of the applicable law. We are satisfied the State demonstrated by clear and convincing evidence that T.J.T. is in need of continued commitment pursuant to the SVPA and we affirm substantially for the reasons stated by Judge Phillip Freedman on the record of May 21, 2007. R. 2:11-3(e)(1)(A).