On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, Indictment Nos. 91-01-0014, 91-01-0015, 91-04-0379.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 16, 2009
Before Judges Stern and Harris.
Defendant appeals from the denial of his petition for post conviction relief (PCR) based on claims of ineffective assistance of counsel and illegality of his sentence.
Following his negotiated guilty plea, defendant was sentenced, in October 1991, to twenty years at Avenel with ten years to be served before parole eligibility under the Sex Offender Act , N.J.S.A. 2C:47-1 to -3, for aggravated sexual assault and to a concurrent sentence for endangering the welfare of a child. He claims the sentence and subsequent commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, were illegal so that his petition for PCR is cognizable. See R. 3:22-2(c); R. 3:22-12.
State v. Bellamy, 178 N.J. 127 (2003), requires that a defendant who pleads guilty to a predicate offense must be advised of the potential SVPA commitment as a consequence of the plea. The holding was based on "fundamental fairness" and the consequences were not considered "direct" or "penal," id. at 139-40, and the Court made the case retroactive only to cases on direct appeal. Id. at 142-43.
Defendant seems to acknowledge Bellamy is not retroactive and that the SVPA did not even exist at the time of his plea. It therefore appears that counsel could not be ineffective for failure to advise of the potential for SVPA commitment at the end of the criminal sentence, and the SVPA consequences could not have been developed by the judge at the time of plea. The plea was therefore valid, and there is no basis on which to conclude the sentence is "illegal."
The issue then becomes whether the commitment poses an ex post facto issue or violates the double jeopardy clause. Because both the Unites States Supreme Court and our Supreme Court have emphasized that SVPA commitments are civil in nature, they present no ex post facto or double jeopardy concern. See, e.g., In Re Commitment of J.M.B., 197 N.J. 563, 598-601 (2009).
The order denying PCR is affirmed.
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