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State v. Smith

April 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT C. SMITH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-06-0911.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 11, 2009

Before Judges Axelrad and Parrillo.

Defendant Robert C. Smith appeals from the order of the Law Division denying his motion for post-conviction relief (PCR). We affirm.

Indicted on ten counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and four counts of third-degree child endangerment, N.J.S.A. 2C:24-4(a), defendant pled guilty on September 21, 1992, to four counts of second-degree sexual assault pursuant to an agreement under which the State agreed to recommend a maximum sentence of seven years imprisonment with a mandatory five-year period of parole ineligibility.*fn1 On July 22, 1993, defendant was sentenced in accordance with the plea agreement to an aggregate seven-year term with a five-year parole bar, to be served at the Adult Diagnostic and Treatment Center at Avenel. Defendant did not appeal from the judgment of conviction.

Upon expiration of his prison term, the State filed a petition to civilly commit defendant under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, which was granted. Thereafter, on February 18, 2004, defendant filed a pro se petition for PCR, seeking release from custody, or in the alternative, vacatur of his guilty plea on the ground that he was unaware of the possible civil commitment consequences of his plea since the SVPA, enacted in 1999, had not been in existence at the time, and that the statute's retroactive application violates his constitutional rights. The Law Division denied the relief as time barred, Rule 3:22-12. We summarily reversed for want of counsel and remanded for further proceedings. Following argument, the PCR judge denied the petition.

On appeal, defendant raised the following issues:

I. IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF.

A. THE PETITIONER SHOULD BE ALLOWED TO WITHDRAW HIS PLEA.

B. AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.

C. THE COURT ERRED BY RELYING ON UNPUBLISHED OPINIONS WHICH CARRY NO PRECEDENTIAL VALUE.

II. PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

A. THERE ARE NO PROCEDURAL BARS AS TO THE MIRANDA ARGUMENT WHICH WAS NOT RAISED BY TRIAL COUNSEL AND ...


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