July 28, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAMONT BROOKS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-06-0603, 98-06-0604.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 25, 2009
Before Judges Payne and Ashrafi.
On June 16, 1998, prior to the passage of the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, defendant pled guilty to second-degree sexual assault by force and coercion, N.J.S.A. 2C:14-2c(1), and fourth-degree failure to register as a sex offender, N.J.S.A. 2C:7-2d(1). On October 15, 1998, after the passage of the SVPA but before its effective date in August 1999, defendant was sentenced in accordance with his plea bargain to five years in custody, with five years of parole ineligibility. Defendant served his sentence at the Adult Diagnostic and Treatment Center at Avenel, and upon its conclusion in 2003, he was civilly committed as a sexually violent predator pursuant to the SVPA.
In 2006, defendant sought post-conviction relief (PCR), making arguments that centered on the application of the SVPA to him and lack of notice that he was potentially subject to the Act. Relief was denied, and defendant has appealed.
On appeal, defendant raises the following issues for our consideration:
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE DENIED BECAUSE IT WAS FILED MORE THAN FIVE YEARS AFTER HIS CONVICTION AND SENTENCE.
DEFENDANT'S CONVICTIONS AND SENTENCE SHOULD BE VACATED AND HE SHOULD BE AFFORDED A TRIAL BECAUSE HE WAS NOT ADVISED AT THE TIME OF HIS PLEA THAT HE COULD BE SUBJECT TO CIVIL COMMITMENT AFTER SERVING HIS SENTENCE.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE FAILED TO ADVISE THE DEFENDANT THAT HE FACED THE POSSIBILITY OF BEING CIVILLY COMMITTED PURSUANT TO THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT. POIONT IV THE APPLICABILITY OF THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT TO THE DEFENDANT VIOLATES THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO LAWS.
APPLICABILITY OF THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT TO THE DEFENDANT IS A DIRECT RATHER THAN A COLLATERAL CONSEQUENCE OF HIS GUILTY PLEA.
Having considered defendant's arguments in light of the record and applicable precedent, we affirm.
We first note that defendant's petition was untimely filed beyond the five-year period after sentencing provided by Rule 3:22-12, which states:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing the delay beyond said time was due to defendant's excusable neglect.
Defendant seeks to excuse his delay by claiming that he lacked grounds for PCR within the five-year period, because during that time, he had not been found eligible for civil commitment. While that is true, defendant's argument fails to explain his subsequent almost three-year delay in seeking relief. We find this delay to have been excessive, and without reasonable excuse. Additionally, we find defendant's substantive arguments, which run contrary to well-established precedent, to lack the significance required to provide grounds for relaxation of the Rule. See State v. Cummings, 321 N.J. Super. 154, 168-69 (App. Div. 1999) (requiring courts faced with untimely PCR petitions to consider the extent and cause of the delay, the prejudice to the State, and the importance of the defendant's claim). Relaxation of the provisions of Rule 3:22-12 requires "exceptional circumstances," State v. Afanador, 151 N.J. 41, 52 (1997), a standard that is unmet in this case.
Nonetheless, as did the PCR judge, we address defendant's substantive arguments.
Defendant claims that he was not informed at the time of his plea that he was potentially subject to civil commitment pursuant to the SVPA, and that if he had been so informed, he would not have pled guilty. State v. Bellamy, 178 N.J. 127 (2003), now requires that all defendants exposed to the possibility of civil commitment be informed of that potential collateral consequence when pleading guilty to a crime covered by the SVPA. Id. at 139. However, Bellamy's holding was given only pipeline retroactivity, id. at 142-43, and it is inapplicable to defendant, who did not appeal, and thus did not have a case "pending direct review at the time of the rule's announcement." Ibid. We find no basis for crafting an exception to the Court's clearly articulated limitation on retroactivity.
Moreover, although defendant could have been informed by counsel at sentencing of the potential effect of the SVPA, and he was not, defendant acknowledged at the time of his plea that he understood that if he were incarcerated as a repetitive and compulsive sex offender, as defendant was, he might be subject to involuntary commitment following the expiration of his sentence. Thus, defendant was aware throughout the plea proceedings of the potential for civil commitment. He lacked knowledge only of the statutory authority for that commitment. Because this information was conveyed to defendant by counsel, we do not find defendant's decision to have been unknowing or counsel's performance to have been ineffective under standards established by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant additionally argues that the Constitution's prohibition against ex post facto laws precludes his civil commitment pursuant to the SVPA, which he claims to be a direct consequence of his plea to aggravated sexual assault. However, the Court has previously found civil commitment under the SVPA to be a collateral consequence of a defendant's plea. Doe v. Poritz, 142 N.J. 1, 46 (1995); Bellamy, supra, 178 N.J. at 137-38. Moreover, we have previously rejected defendant's ex post facto argument in In the Matter of the Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004), holding there that the defendant's ex post facto challenge to the SVPA was constitutionally groundless because commitment under the statute was civil, not penal in nature. See also Kansas v. Hendricks, 521 U.S. 346, 360-69, 117 S.Ct. 2072, 2081-85, 138 L.Ed. 2d 501, 514-19 (1997) (rejecting an ex post facto constitutional challenge to Kansas's SVPA because the statute's civil nature).
Finding no merit in defendant's untimely PCR petition, we thus affirm.
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