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State v. Davis

February 13, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GILBERT DAVIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Ind. No. 91-02-0461.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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