On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 88-11-1040 and 90-09-0954.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2008
Before Judges Parker and LeWinn.
Defendant Miguel Lorenzo appeals from the October 16, 2007 order of the trial court denying his petition for post-conviction relief (PCR). We affirm.
On April 9, 1991, defendant entered a plea of guilty under indictment 88-11-1040 to third-degree aggravated assault on a police officer, in violation of N.J.S.A. 2C:12-1(b)(5)(a). On June 3, 1991, defendant entered a plea of guilty under indictment 90-09-0954 to two counts of first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(5)(a). At that plea hearing, defendant acknowledged that, because he was pleading to sex offenses, he would be subject to evaluation for possible confinement at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, pursuant to N.J.S.A. 2C:47-1 to -10. The sentence recommendation in his plea agreement was for a flat fifteen-year term if sentenced to New Jersey State Prison, or a seven-and-a-half-year term if confined at the ADTC.
Defendant was sentenced on November 11, 1991. He received a three-year term of imprisonment on the third-degree offense. As he was determined ineligible for confinement at the ADTC, he received two concurrent terms of fifteen years on the aggravated sexual assault charges, which ran concurrently with his three-year term.
Defendant filed an appeal pursuant to R. 2:9-11, and on November 17, 1992, we affirmed his sentence. State v. Lorenzo, No. A-2461-91 (App. Div. November 17, 1992). In or about July 2000, when defendant completed his penal sentence, the State moved to have him civilly committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.
On July 18, 2006, defendant filed a "Motion For Relief Under res-judicata and collateral estoppel[,]" under Indictment No. 90-09-0954. He argued that his civil commitment pursuant to the SVPA should have been estopped by the ADTC determination that he did not fit the criteria to be sentenced as a sex offender. He also contended that his civil commitment violated the Constitution's prohibition against ex post facto laws.
The court regarded defendant's motion as a PCR petition and assigned counsel. Almost one year later, defendant submitted a certification in support of his PCR petition, stating that he "was not advised by [his] attorney or by the Court that [he] would be subject to civil commitment at the end of [his] sentence." Claiming that he "would never have taken the State's plea offer as presented[,]" if he had "known [the] truth as to the . . . information that had been provided to [him]," defendant contended that his attorney "should have filed a motion to vacate any commitment in the future with regards to this plea, but she did not do so."
At a hearing on August 2, 2007, PCR counsel argued:
[A]t the time that he entered into the plea agreement and was sentenced, there was no act, the S.V.P. Act at the time. So clearly neither the Court nor his attorney could have advised him that this was coming down the pike per se.
However, he was in prison doing his sentence and long before the time he actually was up to be maxed out . . . [t]he Act came into effect. Nobody advised him at that point, him or anyone else in his position, . . . nobody came and said, you know, this Act is coming into effect and this is going to [a]ffect what happened to you. In other words, ...