April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHARROD HARGROVE, A/K/A SHARIF DUNBAR, A/K/A SHARROD JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 97-02-0902, 97-02-0903, 97-02-0641, and 97-07-2993.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2009
Before Judges Reisner and Sapp-Peterson.
In 1997 defendant was indicted on four different occasions for numerous offenses which included four first-degree crimes.
On August 15, 1997, defendant entered a retraxit plea of guilty to: (1) two counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b); (2) two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) and (5); and (3) two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a). In exchange for the guilty pleas, the State agreed to dismiss the remaining thirteen counts contained in the outstanding indictments and to recommend a ten-year sentence, one-third of which would have to be served without parole. On April 4, 1998, defendant pled guilty to another offense, second-degree eluding, N.J.S.A. 2C:29-2(b). On May 21, 1998, the court sentenced defendant to an aggregate seven-year period of incarceration with a three-and-one-half-year period of parole ineligibility.*fn1
On July 10, 1998, the court imposed a four-year custodial sentence on the eluding charge that was to be served consecutive to the sentence imposed on May 21. No appeal was taken of the conviction or sentence imposed on any of the offenses to which defendant pled guilty.
On May 26, 2005, the State filed a petition in Superior Court for the civil commitment of defendant pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Following a hearing on the petition, defendant was civilly committed pursuant to the SVPA. On appeal, we affirmed his commitment.
On June 15, 2006, defendant filed a pro se petition for post-conviction relief (PCR). Counsel was assigned to represent defendant and an amended petition was filed. In his petition, defendant claimed that his trial counsel "failed to inform him of the future potential possibility of a retroactive consequence in being subjected to commitment under the New Jersey S.V.P. Act at the completion of his term of incarceration." In his amended petition, defendant contended that although he had completed his sentence, the State chose to have him civilly committed based upon the "predicate offense being the identical subject matter in which this court has original jurisdiction."
On July 13, 2007, the court conducted oral argument and, at its completion, delivered an oral opinion denying the petition. The court reasoned:
There was no obligation on the part of defense counsel or on the part of the Court to advise the defendant of the existence of a law that didn't yet exist or couldn't anticipate its existence. And there doesn't appear to be any demonstration of an obligation, although there's an assertion, there doesn't appear to [be] any demonstration or obligation on the part of the defense counsel well after sentencing, well after the time for appeal, notice of appeal, to give ongoing advice to a defendant. His responsibility as counsel ends with the expiration of the -- of the time for filing a notice of appeal or length of time for -- time for filing notice of appeal. That time had well expired before the enactment.
And, in addition, at this point we're well beyond the five-year limitation under the rule and there doesn't appear to be any reasonable justification for applying any exception to time limitation. There's nothing illegal about the sentence, there's no unconstitutionality or ineffectiveness on the part of counsel.
On appeal, defendant raises the following points for our consideration:
SUBJECTING THE DEFENDANT TO THE PROVISIONS OF THE SVPA WITHOUT AN OPPORTUNITY TO WITHDRAW HIS PLEA VIOLATES THE PRINCIPLES OF FUNDAMENTAL FAIRNESS.
THE COURT ERRED WHEN IT RULED THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WAS NOT SUBJECT TO THE "INTERESTS OF JUSTICE" EXCEPTION TO THE FIVE[-]YEAR FILING REQUIREMENT.
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING.
We have carefully considered the points raised in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge in his July 13, 2007 oral opinion. We add the following comments.
We do not agree that defendant's petition is untimely since the basis of his petition arises out of his civil commitment in July 2005. The Attorney General is not required to initiate civil commitment proceedings for every person convicted of a sexually violent offense within the meaning of the SVPA. N.J.S.A. 30:4-27.28(c) provides that "[t]he Attorney General may initiate a court proceeding for involuntary commitment under this act of an inmate who is scheduled for release upon expiration of a maximum term of incarceration by submission to the court of two clinical certificates for a sexually violent predator, at least one of which is prepared by a psychiatrist." Because civil commitment is not mandatory, defendant was not required to anticipate that such a petition would be filed and therefore to seek post-conviction relief when the SVPA went into effect.
Nonetheless, as the trial court stated, defense counsel was under no duty to advise him that the consequences of his guilty pleas included further consequences not yet enacted into law. Defendant entered his guilty pleas in August 1997 and was sentenced on May 21, 1998. The SVPA was approved August 12, 1998 and went into effect August 12, 1999. Defendant concedes that under State v. Bellamy, the new rule announced in the decision, namely that a trial court, prior to accepting a plea to a sexually violent offense as defined under the SPVA, must make certain that a defendant fully understands that as a result of the plea, there is the possibility of future commitment and that such commitment may be for an indefinite period, up to and including lifetime commitment, applied only to cases pending direct review at the time of the rule's announcement. 178 N.J. 127, 142-43 (2003) (citing State v. Czachor, 82 N.J. 392, 409-10 (1980)).