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In re State ex rel J.A.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 24, 2008

STATE OF NEW JERSEY IN THE INTEREST OF J.A.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, FJ-19-1030-97, FJ-19-196-95.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2008

Before Judges Winkelstein and Fuentes.

Defendant, J.A., appeals from Judge Gannon's denial of his petition for post-conviction relief. On appeal, he raises the following issues for our consideration:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT SHOULD BE RELEASED FROM HIS CIVIL COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT (RAISED IN PART BELOW AND NOT RAISED IN PART BELOW).

(A) THE COURT ERRED IN FINDING DEFENDANT'S PETITION TO BE PROCEDURALLY BARRED BECAUSE THE PETITION WAS COGNIZABLE IN POST-CONVICTION RELIEF UNDER THE "DIRECT REVIEW" STANDARD ARTICULATED IN STATE V. BELLAMY (RAISED IN PART BELOW).

(B) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S CIVIL COMMITMENT VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS (NOT RAISED BELOW).

(C) THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S CIVIL COMMITMENT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS (NOT RAISED BELOW).

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN POST-CONVICTION RELIEF.

We affirm.

When he was fourteen years old, defendant was charged with first-degree aggravated sexual assault, by committing an act of anal penetration upon D.L., who was less than thirteen years old. On May 10, 1995, when he was fifteen years old, J.A., as a juvenile, pleaded guilty to an amended charge of second-degree sexual assault. The court imposed a three-year period of probation. Defendant did not take a direct appeal from his delinquency adjudication.

On September 16, 1997, at age seventeen, defendant was adjudicated delinquent for a violation of probation, after acting out improper sexual behavior while attending the Pinelands Program. The court imposed a three-year term at the Youth Reception Center at Jamesburg. Defendant did not file an appeal from that determination.

On September 10, 1999, two days before his scheduled discharge from the Jamesburg facility, defendant, then nineteen years old, was classified as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.35. He did not file an appeal from his order of commitment.

The records, including the audio tapes, of these proceedings have been destroyed and cannot be reconstructed.

At age twenty-six, on June 29, 2006, defendant filed his petition for post-conviction relief. He claimed that the attorney who represented him in the 1997 juvenile proceedings failed to inform him of the "future potential possibility of a retroactive consequence in being subjected to commitment under the New Jersey's [Sexually Violent Predator Act] at the completion of his term of incarceration." In a brief to the trial court in support of defendant's post-conviction relief petition, counsel raised the following legal arguments:

POINT ONE

THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS NOR SHOULD IT BE BARRED AS THERE WAS EXCUSEABLE NEGLECT.

1. The Time Bar Should Be Relaxed Because Defendant's Delay In Filing His PCR Petition Was Due to Excusable Neglect.

2. The Time Bar Should Be Relaxed in the Interests of Justice.

POINT TWO

PETITIONER SHOULD BE PERMITTED TO WITHDRAW HIS PLEA.

The trial court heard arguments on these issues and on October 3, 2006, defendant testified. In a decision from the bench on January 18, 2007, the court rejected defendant's arguments, which were primarily directed at the failure of his counsel in September 1997, when he was convicted of a violation of probation for sexual assault, to inform him that he could be involuntarily committed under the SVPA. The court made the following findings:

I've reviewed all applicable case law that's been cited by the attorneys in this case. And in particular I've reviewed State versus Bellamy, which was decided by the New Jersey Supreme Court at 178 New Jersey 127, decided on December 11th, 2003. In that case the Court held that where the person had been committed under the Sexually Violent Predator Act fundamental fairness required that prior to accepting a plea to any predicate offense under the act, the Court must assure itself that the Defendant understands that as a result of his plea there is that possibility of future commitment and that such a commitment may be for an indefinite period of time up to and including a lifetime of commitment.

The particular case there, State versus Bellamy, and that principle that was advanced there, was held to be applicable to those cases which were in the so-called case pipeline at the time. But it was held that with regard to retroactivity that it did not apply retroactively to those cases that had already been adjudicated and fully decided.

The reason for that is because the Supreme Court held that in determining the limited retroactive effect of the new rule announced in State versus Bellamy that it would essentially undermine the justice system and have a disruptive effect on the administration of justice if there were to be full retroactivity.

I'm satisfied here that in this case that the litigant, who is now an adult in this juvenile proceeding, had the full benefit of appealing both his prior juvenile delinquency adjudications and that he had the benefit of the Appellate process in advancing any arguments relative to his civil commitment in that civil proceeding.

This post conviction relief application is not a substitute for that Appellate review . . . of that civil commitment process.

To the extent that this Defendant has not availed himself of all opportunities to explore those issues on the civil appeal, he is foreclosed from relitigating this matter in the juvenile proceedings.

So accordingly the petition will be denied.

Following defendant's filing a notice of appeal, the court supplemented its findings with a written statement of reasons.

See R. 2:5-6(c). The court stated the following:

First, the SVPA was enacted into law in 1998 and became effective August 12, 1999. Thus, his attorney could not possibly inform him of the potential for civil commitment under the SVPA because it was not in existence yet. Second, this PCR petition was filed well outside the 5-year time limit contemplated by the rules, R. 3:22-12.

Additionally, the petitioner's argument that his sentence was illegal also falls short. He was committed to the custody of the Juvenile Justice Commission for a term of three years in September 1997. He never appealed his adjudication or his disposition. He was civilly, not criminally, committed under the SVPA in September of 1999. The legislative intent of the SVPA is regulatory in nature, not penal, and any punitive impact is simply "an inevitable consequence" of the statute and its regulation. State v. Bellamy, 178 N.J. 127, 135 (2003) . . . .

We agree with the trial court's reasoning in both its oral decision and written supplement to the record.

Except for a petition to correct an illegal sentence, which may be filed at any time, no other petition for post-conviction relief may be filed "more than five 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." R. 3:22-12(a). Here, at the very latest, the five-year time limit contemplated by Rule 3:22- 12 expired on September 16, 2002, five years from the date his three-year Jamesburg disposition was imposed. He did not appeal from that disposition, nor did he file his post-conviction relief application until June 29, 2006.

Defendant claims he is entitled to an extension of time because the delay was due to his excusable neglect. Specifically, he claims that he was never notified by his trial attorney that he had forty-five days to appeal from his conviction, and thus the five-year period within which to file a post-conviction relief application never began to run. That statement has no support in the record. He was represented by counsel during the proceedings, and to conclude that he was not informed of his right to appeal is pure speculation. That the records of those proceedings have been destroyed or lost is itself an example of why there is a need for a timely post- conviction relief application.

Defendant has been represented by counsel at each of his various proceedings, including the proceedings in which he was committed as a sexually violent predator. Those latter proceedings were conducted in September 1999, well before the Supreme Court's opinion in State v. Bellamy, 178 N.J. 127, 131 (2003), which concluded, for the first time, that potential commitment under the SVPA, while being a collateral consequence of a guilty plea, required, as a matter of fundamental fairness, that a defendant pleading guilty to a predicate offense under the SVPA was entitled to be advised of his potential for civil commitment before entering the guilty plea. Id. at 131. The Court ruled that the failure to provide a defendant with that information was a ground for a defendant to withdraw his guilty plea. Id. at 140.

Nevertheless, the Court limited the retroactivity of its decision, "only to cases pending direct review at the time of the rule's announcement." Id. at 142-43. Consequently, here, because defendant's case was not pending direct review when Bellamy was decided, Bellamy's requirement that a defendant be advised of a potential commitment under the SVPA when he enters a guilty plea does not apply to defendant.

Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). We affirm substantially for the reasons expressed by Judge Gannon in his oral and written decisions. Defendant has not established a prima facie case of ineffective assistance of counsel; nor has he shown that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

Affirmed.

20081224

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