February 13, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GILBERT DAVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Ind. No. 91-02-0461.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Yannotti and LeWinn.
Defendant appeals from an order entered April 21, 2006, which denied his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
On February 2, 1991, a Camden County grand jury returned Indictment No. I-461-02-91, charging defendant with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(2)(c) (counts one and two); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(5) (counts three and four); third-degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3(a) (counts five, six and seven); fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (counts eight, nine and ten); and third-degree endangering the welfare of a minor, contrary to N.J.S.A. 2C:24-4(a) (counts eleven and twelve).
On September 26, 1991, pursuant to a negotiated plea agreement, defendant entered a guilty plea to aggravated sexual assault (count one) and endangering the welfare of a minor (count twelve). The State agreed to recommend a maximum sentence of fifteen years with a five-year period of parole ineligibility; to dismiss the remaining ten counts of the indictment; and to waive the right to seek imposition of an extended term. Defendant agreed to waive his right to appeal.
Defendant gave the following factual basis for his plea. On January 19, 1991, he was living with his nine-year-old daughter, his girlfriend, and his girlfriend's thirteen-year-old daughter. On that date, he sexually assaulted the thirteen-year-old girl by committing vaginal penetration, in the presence of his young daughter.
On May 15, 1992, defendant was sentenced in accordance with the plea bargain. He received a fifteen-year term with a five-year parole disqualifier on count one and a concurrent five-year term on count twelve.
On September 28, 2000, approximately ten days before defendant was due to complete his sentence, the Attorney General filed a petition for civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, which took effect on August 12, 1999. Following a commitment hearing on January 24 and 25, 2001, defendant was committed under the SVPA by an order entered on February 1, 2001.
Defendant did not file an appeal from that commitment order. Rather, on February 25, 2001, he filed a motion in the trial court to enforce his 1991 plea agreement, arguing that the State had "reneged" on its agreement to "release" him at the end of his penal sentence by retroactive application of an ex post facto law. On June 25, 2001, the trial court denied his motion. Defendant appealed to this court and, in an unreported decision, we affirmed, finding no merit in defendant's arguments that (1) he had been misinformed about the consequences of his guilty plea in 1991; and (2) retroactive application of the SVPA violated his constitutional right to protection against imposition of ex post facto laws. State v. Davis, No. A-6386-00 (App. Div. June 20, 2003). On October 21, 2003, our Supreme Court denied defendant's petition for certification. 178 N.J. 33 (2003).
On January 13, 2004, defendant filed a pro se petition for post-conviction relief in the trial court. Judge Robert G. Millenky entered an order assigning defendant counsel on February 19, 2004, and, thereafter, held a hearing on March 24, 2006. On April 29, 2006, Judge Millenky issued a written opinion, and entered an order, denying post-conviction relief.
On appeal, defendant now raises the following issues for our consideration:
DEFENDANT WAS COVERED BY THE SUPREME COURT'S RULING IN STATE V. BELLAMY; ACCORDINGLY, AS DEFENDANT WAS NOT NOTIFIED WHEN HE ENTERED HIS GUILTY PLEA TO AN SVPA PREDICATE CRIME THAT HE FACED AN APPLICATION FOR INDETERMINATE INVOLUNTARY COMMITMENT UPON THE COMPLETION OF HIS SENTENCE AND WOULD NOT HAVE ENTERED HIS PLEA HAD HE KNOWN THIS, HIS RIGHT TO FUNDAMENTAL FAIRNESS WAS VIOLATED
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EQUAL PROTECTION BY HIS PRECLUSION FROM THE RULE ANNOUNCED IN STATE V. BELLAMY
DEFENDANT'S SVPA CONFINEMENT VIOLATES THE STATE'S DOCTRINE OF FUNDAMENTAL FAIRNESS
Having reviewed the record below, we conclude the order of April 29, 2006 must be affirmed substantially for the reasons set forth in Judge Millenky's thorough and comprehensive decision. R. 2:11-3(e)(2) We add the following comments.
In State v. Bellamy, 178 N.J. 127 (2003), the Court held that, as a matter of fundamental fairness, prior to accepting a guilty plea to an offense that constitutes a predicate act under the SVPA*fn1, a trial court must inform the defendant of the possibility of involuntary commitment under that statute as a consequence of the plea. While not expressly characterizing such a consequence as penal in nature, the Court nonetheless concluded: "[W]hen the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence." Id. at 139.
The Court then considered the retroactive effect to be granted to the new rule articulated in the decision, and concluded:
The lack of data regarding the number and kinds of cases that would be affected by a rule of complete retroactivity and the impact that complete retroactivity would have on the administration of justice mandates that the new rule should apply only to cases pending direct review at the time of the rule's announcement. [Id. at 142-43.]
In other words, the Bellamy rule was accorded so-called "pipeline retroactivity." The rule applied only to defendants who either were awaiting trial or whose convictions were then on direct appeal as of the date the case was decided. Id. at 143.
The Supreme Court decided State v. Bellamy on December 11, 2003. On that date defendant had no case on direct review. Therefore, he is not entitled to relief under that decision.
In his brief defendant contends that "his case is covered by the spirit, if not perhaps, the letter, of the 'pipe-line' retroactivity announced in Bellamy, and that the Court thus would have intended his case to fall within the ambit of cases covered by that rule." However, defendant's situation is clearly in that category of cases that impelled the Bellamy Court to select "pipeline" retroactivity. If defendant were granted the opportunity to vacate his plea at this time, the State would be hard-pressed to proceed to trial on his 1991 charges. This is just the result the Bellamy Court obviously intended to avoid by ordering limited retroactivity.
As Judge Millenky stated in rejecting defendant's contention that he should be granted relief notwithstanding the limited retroactivity provided by Bellamy:
When the Supreme Court announced its new rule in Bellamy, with its limited, pipeline retroactivity, defendant fell, objectively, outside the ambit of the new rule.
No applicable principle of law would allow this PCR Court to alter the Supreme Court's retroactivity decision. Decisions on retroactivity are uniquely within the purview of the Supreme Court.
We agree with the trial court's disposition of this issue.
Furthermore, this court has no more authority to modify Bellamy's retroactivity effect than does a PCR court. See State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976). ("[W]e as an intermediate appellate court are bound to comply with the law established by the Supreme Court.")
Finally, we concur with Judge Millenky's resolution of defendant's equal protection and fundamental fairness arguments. We perceive no constitutional or other infirmity in Bellamy's bright-line test of pipeline retroactivity.