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State v. Cubi

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 18, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSE A. CUBI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 98-02-0066.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2008

Before Judges Parker and Koblitz.

Defendant, Jose Cubi, appeals from the May 1, 2007, order denying his petition for post-conviction relief (PCR). On this appeal defendant raises the following argument:

POINT ONE THE TRIAL COURT COMMITTED ERROR BY NOT GRANTING THE PETITIONER'S MOTION FOR POST CONVICTION RELIEF ON THE GROUNDS THAT HIS COUNSEL WAS INEFFECTIVE FOR NOT ADVISING HIM THAT HIS PLEA TO THE AGGRAVATED SEXUAL ASSAULT OFFENSE EXPOSED HIM TO BEING CIVILLY COMMITTED UNDER THE SEXUALLY VIOLENT PREDATOR ACT OR IN THE ALTERNATIVE THAT FUNDAMENTAL FAIRNESS REQUIRED THE GRANTING OF THE MOTION.

We affirm substantially for the reasons set forth in Judge William L. Forester's oral opinion of April 26, 2007. We add only these comments.

A Salem County grand jury returned indictment No. I-98-02-0066, charging defendant with first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a, and third degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a, for sexually assaulting a child at least thirteen but less than sixteen years old.

On June 22, 1998, defendant entered a guilty plea, admitting to committing second degree aggravated sexual assault against a fourteen year old child. In exchange for defendant's guilty plea, the State agreed to recommend imposition of a ten year sentence in state prison with five years of parole ineligibility, and dismissal of the remaining count. Defendant agreed to waive his right to appeal and signed a form which asked, among other questions, "Do you understand that if you are incarcerated as a repetitive and compulsive sex offender you may be subject to involuntary commitment following the expiration of your sentence?" Defendant circled "Yes."

On November 20, 1998, consistent with the plea agreement, defendant was sentenced to a term of ten years with a five year period of parole ineligibility. The evaluation by the Adult Diagnostic and Treatment Center at Avenel (ADTC) found defendant to be a repetitive, but not compulsive, offender and therefore not subject to sentencing under the Sexual Offender Act (SOA). Defendant did not file a direct appeal of his conviction or sentence.

On May 14, 2004, prior to his release from custody, defendant was involuntarily committed under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Two years later, on June 12, 2006, defendant filed a PCR petition. Judge Forester found that the application was time-barred under R. 3:22-12A because no excusable neglect was proffered by defendant for filing the PCR more than five years after the sentence was imposed. The court did consider the PCR on its merits, however.

Defendant argued that he should have been permitted to withdraw his guilty plea because his attorney was ineffective in that counsel never advised defendant that involuntary civil commitment could be a collateral consequence of his conviction. Defendant was advised in writing, however, that he might be sentenced to ADTC and that civil commitment could follow such a sentence. Thus, defendant knew he was facing the possibility of civil commitment when he pled guilty.

It is true that defendant was not informed of the possibility of a civil commitment following a state prison sentence. He entered the plea prior to the passage of the SVPA and was sentenced after its passage but before its effective date. Judge Forester 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. 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. Here defendant did not file a direct appeal and is not, therefore, entitled to relief.

Defendant's reliance on State v. Howard, 110 N.J. 113 (1988) is also misplaced. In Howard, the Supreme Court held that prior to accepting a guilty plea, the trial court must inform sex offenders of the possibility and parole consequences of a sentence to ADTC. Howard, supra, 110 N.J. at 118. Defendant was informed of the ADTC consequences, even though he was not sentenced to ADTC.

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). Given that counsel had no obligation to inform defendant that the SVPA might apply to him, counsel was not ineffective for failing to do so.

Defendant's second argument, that the SVPA should not be applied to defendants like himself who pled guilty before its effective date, was an issue decided years 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).

Defendant also claims he was denied effective assistance of counsel because his attorney did not request a Spanish language interpreter for the plea hearing, although an interpreter was provided at his attorney's request for the sentencing hearing. As Judge Forester found, defendant had been in this country for at least twenty-one years prior to pleading guilty. At the plea hearing, defense counsel established, through his questioning of defendant, that the two had conducted many conversations in English and defendant had no problem understanding the English language. Thus, defendant understood the plea agreement and the court proceedings without a Spanish language interpreter. Given defendant's acknowledged proficiency in the English language, his counsel was not ineffective in failing to request an interpreter for the plea hearing.

Affirmed.

20080618

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