On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 90-02-0258.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Lisa and Sapp-Peterson.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. On July 16, 1990, pursuant to a plea agreement, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. As recommended in the plea agreement, he was sentenced on April 19, 1991 to sixteen years imprisonment with an eight-year parole disqualifier, to be served concurrently with a sentence defendant was then serving. Defendant did not appeal his conviction or sentence. On September 8, 2000, as defendant was about to be released from incarceration, the State initiated a civil commitment action against him pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Defendant was found to be in need of commitment under the SVPA, and, as of the time of the PCR proceedings, he remained confined under the SVPA.
On September 21, 2005, defendant filed a pro se PCR petition. He alleged he was wrongfully civilly committed because he pled guilty to aggravated sexual assault in 1990 although he was innocent. He alleged he was pressured into pleading guilty because his attorney informed him he would probably be found guilty and could receive an extended term sentence as a persistent offender of as much as forty years imprisonment with a twenty-year parole disqualifier. He contended his civil commitment was improper because it "violates the plea contract" and because he has "iron-clad, genetic evidence of [his] innocence." He attached to his PCR petition the referenced evidence, namely a report of the Federal Bureau of Investigation (FBI) laboratory of June 15, 1990.
The matter came before Judge Wertheimer on August 18, 2006. Defendant had been assigned counsel. At the hearing, counsel referred to the memorandum he had filed, but we have not been furnished with a copy of that document. Defendant's attorney argued that defendant's guilty plea was fatally defective as not being knowing and voluntary because he was not advised of the potential SVPA consequences after he completed service of his sentence. He further argued that because the FBI laboratory report indicated that DNA analysis was inconclusive, defendant would have had a good chance of acquittal had he gone to trial, and that defendant told his trial attorney he wanted to go to trial. Appellate counsel further argues that because the six-year-old victim had been seriously injured in the attack, she might have had difficulty in providing a reliable identification of defendant as her assailant. PCR counsel contended that trial counsel pressured defendant into pleading guilty.
Without ordering an evidentiary hearing, Judge Wertheimer issued a written decision on August 18, 2006 and entered an order denying the PCR petition. This appeal followed.
Defendant argues on appeal:
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED.
THE COURT SHOULD SET ASIDE DEFENDANT'S PLEA AGREEMENT BECAUSE THE PLEA WAS COERCED AND THE DEFENDANT WAS NEVER INFORMED OF THE FULL ...