On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 95-12-1569.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
This case presents the issues of whether a criminal defendant who pled guilty to four counts of sexual assault prior to the enactment of the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and the Supreme Court's decision in State v. Bellamy, 178 N.J. 127, 138 (2003), is entitled to relief in his petition for post-conviction relief (PCR) more than five years after he was civilly committed and whether the Court's decision in Bellamy applied here. We answer both questions in the negative and conclude that defendant's PCR petition is both time-barred and without merit.
We review the relevant facts and procedural history, which are not in significant dispute.
In August 1995, defendant Jason Davis, twenty-one years of age at the time, committed a series of sexual assaults upon four female victims, all of whom were twelve years of age or younger. On December 22, 1995, Defendant was indicted on fifteen counts of second degree sexual assault, contrary to N.J.S.A. 2C:14-2b; six counts of third degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a; and one count of second degree attempted sexual assault contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2b.
Defendant pled guilty to four counts of sexual assault. The State recommended a maximum term of seven years on all of the counts and dismissal of the remaining counts. After providing a factual basis for the pleas, the court found that defendant "entered [the plea] voluntarily and without any promises or threats being made" and that the pleas were "entered with an understanding by the defendant of the charges pending against him and the consequences of these four counts after a full and adequate discussion with his attorney . . . ."
Within the agreement was a three page document entitled "ADDITIONAL QUESTIONS FOR CERTAIN SEXUAL OFFENSES." At page three of this questionnaire, item six specifically asks:
6. Involuntary Commitment Do you understand that if you are incarcerated as a repetitive and compulsive sex offender you may be subject to involuntary commitment following the expiration of your sentence?
Defendant circled "[YES]" next to this question and he, his attorney and the prosecutor signed the form directly below item six.
The court sentenced defendant on May 30, 1997 to seven years on the four counts in the plea to be served at the Adult Diagnostic and Treatment Center at Avenel, along with appropriate statutory fines and penalties. On September 18, 1997, defendant filed a notice of appeal challenging the excessiveness of his sentence and on June 8, 1998, we affirmed the seven-year term.
The Attorney General's Office filed a petition on November 1, 2001 for the civil commitment of defendant pursuant to the SVPA. Shortly thereafter, defendant was transferred to the Special Treatment Unit Annex in Avenel and civilly committed pursuant to the SVPA.*fn1
Defendant filed a petition for PCR on February 9, 2007 and was assigned counsel from the Office of the Public Defender. On his PCR form, defendant argued that his attorney "failed to inform him of the future potential possibility of a retroactive consequence in being subjected to commitment under the N.J. Sexually Violent Predator's [sic] Act at the completion of his term of incarceration."
Following argument on the PCR, in a written opinion, Judge Roma denied relief and said:
Defendant contends that he should be allowed to retract his guilty plea because he made an unknowing and involuntary plea due to not being informed of the possible civil commitment under The Sexual Violent Predator Act ("SVPA") as required under State v. Bellamy, 178 N.J. 127 (2003). In Bellamy, the Court ruled that a defendant who is subject to SVPA must be made aware of this fact at the time of the guilty plea as a matter of "fundamental fairness." Id. at 139. However, the court limited this rule to cases initiated after the Bellamy ruling and those under direct review at the time of the ruling. Id. at 141-3. Clearly, defendant does not fall into either of these classes as his conviction took place six years prior to the decision in Bellamy. Thus, defendant's argument that Bellamy applies fails. It is also important to note that defendant was aware of the possibility of civil commitment as he answered ...