September 8, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY DECKER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 93-01-0004.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Lisa and Simonelli.
Defendant Anthony Decker appeals from the order of April 17, 2007 denying his post-conviction relief (PCR) petition. On appeal, defendant raises the following arguments:
APPLICATION OF THE LIMITED RETROACTIVITY HOLDING IN [STATE V. BELLAMY, 178 N.J. 127 (2003)] DENIES DEFENDANT FUNDAMENTAL FAIRNESS.
THE LIMITED RETROACTIVITY HOLDING IN [BELLAMY] VIOLATES THE PROTECTIONS AFFORDED DEFENDANT UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
DEFENDANT'S NOT HAVING BEEN ADVISED OF THE EFFECTS OF THE SEXUALLY VIOLENT PREDATOR'S ACT AMOUNTS TO INEFFECTIVE ASSISTANCE OF COUNSEL.
We reject these contentions and affirm.
Pursuant to a negotiated, unconditional plea agreement, on July 12, 1993, defendant pled guilty to first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (counts one and four); and second degree sexual assault, contrary to N.J.S.A. 2C:14-2b (count four). The charges stem from defendant's sexual molestation of three children, ranging in age from four to seven years.
In exchange for the guilty plea, the State agreed to recommend a fifteen-year term of imprisonment with a five-year period of parole ineligibility on count one to be served in State prison, or a twelve-year term of imprisonment with a five-year period of parole ineligibility if defendant was sentenced to Avenel; and that the sentences on counts four and six would run concurrently. The State also agreed to recommend dismissal of one count of second degree sexual assault, contrary to N.J.S.A. 2C:14-2b, (count two) and two counts of fourth degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (counts three and five).
A psychological evaluation concluded that defendant was a repetitive and compulsive sexual offender. At sentencing, defendant waived his right to a hearing in connection with the report, indicated that he agreed with the findings and requested to be sentenced to Avenel consistent with the report's recommendation. Defense counsel indicated that defendant recognized that if sentenced to Avenel, he would likely serve more time than if he received a prison sentence.
The sentencing judge sentenced defendant to a twelve-year term of imprisonment with a five-year period of parole ineligibility on count one, to be served at Avenel; to a concurrent ten-year term of imprisonment on count four; and to a concurrent twelve-year term of imprisonment with a five-year period of parole ineligibility on count six. The judge also imposed the appropriate penalty. Defendant did not take a direct appeal.
On or about November 8, 2000, defendant was evaluated and referred for consideration of involuntary commitment pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On March 21, 2001, the court determined that defendant was a sexually violent predator and committed him to the Northern Regional Unit.*fn1 The court continued defendant's civil commitment by orders entered on November 26, 2001, August 19, 2005, and October 13, 2006.
On or about June 17, 2006, defendant filed a pro se PCR petition, contending he was denied effective assistance of counsel because at the time of the plea, his attorney never advised him that he could possibly "spend the rest of [his] life in prison on civil charges after [his] criminal sentence had ended." Judge Critchley denied the petition, finding it was filed "more than five years after the operative events," and thus time barred; and that State v. Bellamy, 178 N.J. 127 (2003), afforded defendant no relief because his case was not on direct review, nor was he awaiting trial, at the time Bellamy was decided.
Based upon our review of the record, we discern no occasion to disturb the judge's ruling. Rule 3:22-12(a) provides that no PCR petition shall be filed "more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." "[A] court may relax the time bar if the defendant alleges facts demonstrating the delay was due to the defendant's excusable neglect or if the 'interests of justice' demand it." State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting State v. Mitchell, 126 N.J. 565, 576 (1992)). In deciding so, a judge "'should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits.'" Ibid. (quoting State v. Afanador, 151 N.J. 41, 52 (1997)).
Here, defendant filed his PCR petition twelve years after he was sentenced. He offers no explanation for his delay in doing so, and has not demonstrated excusable neglect.
Even if defendant's PCR petition was not procedurally barred, it fails on the merits. The Bellamy rule applies only to those cases that were active at the trial level or on direct appeal at the time of the rule's announcement on December 11, 2003. Bellamy, supra, 178 N.J. at 142-43. Defendant's case does not meet these criteria, and it falls well outside of the limited relief afforded by the Bellamy retroactivity. We have no authority to modify Bellamy. Rodriguez v. Carodasco, 279 N.J. Super. 396, 405 (App. Div.), certif. denied, 142 N.J. 451 (1995); see also 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.").
We also reject defendant's contention that counsel was ineffective for failing to inform him that he could be subject to civil commitment under the SVPA for an indefinite period of time following service of his criminal sentence. Enacted in 1998, the SVPA was not effective until August 1999. Defendant entered his plea in 1993. Thus, he could not expect to be informed of a consequence of his plea that did not exist at the time he entered his plea.
Defendant's remaining arguments that Bellamy violates his constitutional right to equal protection under the United States Constitution*fn2 and the New Jersey Constitution,*fn3 and failure to afford him relief under Bellamy violates notions of fundamental fairness, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).