On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 94-10-1771.
The opinion of the court was delivered by: Lisa, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Reisner and Sapp-Peterson.
Defendant appeals from the June 8, 2007 order denying his petition for post-conviction relief (PCR). He argues on appeal:
THE DOCTRINE OF FUNDAMENTAL FAIRNESS REQUIRES THAT DEFENDANT SHOULD BE ALLOWED TO RETRACT HIS GUILTY PLEAS TO AGGRAVATED SEXUAL ASSAULT AND SEXUAL ASSAULT, BECAUSE HE WAS NOT ADVISED THAT THE PLEAS COULD RESULT IN INDEFINITE CIVIL COMMITMENT PURSUANT TO THE SEXUALLY VIOLENT PREDATOR ACT.
Because, under the circumstances of this case, State v. Bellamy, 178 N.J. 127 (2003), does not permit defendant to withdraw his guilty plea, we reject this argument and affirm.*fn1
Defendant was indicted on October 24, 1994, charging him with nine counts of sexual offenses committed against four different victims under thirteen years of age between May 1992 and May 1993. Pursuant to a negotiated plea agreement, defendant pled guilty on April 4, 1995 to four counts, one pertaining to each of the victims. One count to which he pled guilty was for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and the remaining three counts were for second-degree sexual assault, N.J.S.A. 2C:14-2b. On July 28, 1995, defendant was sentenced in accordance with the plea agreement to fifteen years imprisonment for the first-degree offense, and to concurrent seven-year terms for each of the second-degree offenses. Because the judge found defendant's sexual conduct to be repetitive and compulsive, he ordered that defendant serve his sentence at the Adult Diagnostic and Treatment Center. See N.J.S.A. 2C:47-3.
Defendant did not appeal his conviction or sentence. Prior to defendant's release from custody, the State filed a petition seeking his civil commitment pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Defendant was found to qualify for civil commitment under the SVPA, and an order was entered on November 26, 2003 directing his commitment to the Special Treatment Unit, where he has remained confined ever since.
On July 28, 2006, defendant filed his PCR petition. He claimed he was deprived of effective assistance of counsel at the time of his plea because his attorney "failed to inform him of the future potential possibility of a retroactive consequence in being subjected to commitment under New Jersey's S.V.P. Act at the completion of his term of incarceration." In a supplemental brief filed by assigned counsel, defendant argued in his PCR proceeding that, because he was not provided with notice of SVPA consequences, his guilty plea was not knowing and voluntary and resulted in fundamental unfairness. He also argued that civil commitment without notice of potential SVPA consequences constituted a denial of equal protection.
Judge Kreizman rejected defendant's arguments, finding that defendant's requested relief was barred by the Supreme Court's December 11, 2003 decision in Bellamy. In Bellamy, supra, 178 N.J. at 140-43, the Court held that defendants who pled guilty to SVPA-eligible charges without previously being advised of the potential SVPA consequences could withdraw their guilty pleas, but also held that the new rule it announced would apply only "in this case and those cases pending in which the defendant has not yet exhausted all avenues of direct review." Id. at 143. This limited retroactivity is commonly referred to as "pipeline retroactivity." The Court declined to grant complete retroactivity, which would apply the rule to all past cases, id. at 140-41, including those such as defendant's.*fn2
The SVPA was enacted on August 12, 1998, effective August 12, 1999. L. 1998, c. 71, §§ 1-15. Prior to the enactment and effectiveness of the SVPA, many defendants, like this defendant, pled guilty to offenses that would later make them eligible for SVPA commitment. Because such a commitment is civil and not penal in nature, there is no ex post facto violation. In re Civil ...