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State ex rel R.G.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 23, 2009

STATE OF NEW JERSEY IN THE INTEREST OF R.G.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, FJ-07-1306-97.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 12, 2009

Before Judges Lisa and Reisner.

Defendant R.G. appeals from an October 3, 2006 order denying his petition for post-conviction relief (PCR). We affirm.

These are the most pertinent facts. In 1997 defendant, a juvenile, pled guilty to three counts of aggravated sexual assault, N.J.S.A. 2C:14-2a, for molesting young children. He was initially sentenced to probation conditioned on his receiving treatment at the Pinelands Residential Group Center. After he violated probation, R.G. was sentenced in 1998 to a term of four years at the Youth Reception Center in Jamesburg, with twenty-one months of credit for his residential treatment. Shortly before his scheduled release in 2000, R.G. was civilly committed under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, a statute which had not yet been enacted at the time defendant entered his guilty plea in 1997.

In 2006, R.G. filed this PCR petition, contending that when he pled guilty in 1997, he was not told that he might later be civilly committed. The PCR judge concluded that the petition was untimely under Rule 3:22-12. Further, relying on State v. Bellamy, 178 N.J. 127 (2003), the PCR judge also concluded that defendant was not entitled to vacate his plea agreement, nor did he have a claim of ineffective assistance of counsel, because he was not counseled about the not-yet-extant SVPA at the time he pled guilty in 1997.

On this appeal, R.G. presents the following points for our consideration:

POINT I: BECAUSE DEFENDANT RAISES ISSUES OF CONSTITUTIONAL MAGNITUDE, IT WOULD BE MANIFESTLY UNJUST TO ENFORCE AGAINST HIM THE FIVE YEAR PROCEDURAL BAR APPLICABLE TO MOTIONS FOR POST-CONVICTION RELIEF.

POINT II: R.G. IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

POINT III: APPELLANT WAS UNAWARE THAT HE WOULD BE SUBJECT TO THE PROVISIONS OF THE SEXUALLY VIOLENT PREDATOR ACT, N.J.S.A. 304:27.24, ET SEQ., WHEN HE PLEAD GUILTY ON SEPTEMBER 21, 1992, AND AS A RESULTS ITS RETROACTIVE APPLICATION VIOLATES THE APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE FEDERAL AND NEW JERSEY CONSTITUTION.

We conclude that these arguments are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

R.G. contends that the five-year time bar of Rule 3:22-12 should not apply to his petition, and that he should be released from "custody" or permitted to withdraw his guilty plea. Alternatively, he contends that he was entitled to an evidentiary hearing on his petition. We disagree. The SVPA was enacted in 1998. Yet R.G. waited years after the SVPA's enactment, and years after he was first civilly committed in 2000, before filing this PCR petition. His petition filed in 2006 was untimely and barred by Rule 3:22-12.

However, even if we consider the merits, defendant's appellate contentions are precluded by State v. Bellamy, supra. In that case, the Court held that a sex offender who pled guilty without being told about the possibility of later civil commitment under the SVPA should have an opportunity to file a motion to withdraw the plea. However, recognizing that retroactive application of the decision would have "a disruptive effect on the administration of justice," the Court only gave Bellamy pipeline retroactivity. 178 N.J. at 142-43. Because this case was not on direct appeal at the time Bellamy was decided, it was not in the "pipeline" and defendant cannot claim relief under that case. R.G.'s argument, that his civil commitment under the SVPA violates his constitutional right to equal protection, is not properly raised as a challenge to his criminal conviction, but may be raised in an appeal from his civil commitment.

Affirmed.

20090123

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