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State v. E.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 12, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
E.W., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 00-01-0010.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2009

Before Judges Axelrad and Fisher.

In this appeal, defendant argues that his petition for post-conviction relief was erroneously denied. He contends, among other things, that he was entitled to relief because his trial attorney failed to advise that, as a result of a guilty plea to a sexual offense, defendant could be civilly committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Although, in State v. Bellamy, 178 N.J. 127 (2003), the Court ruled that fundamental fairness required that defendants be advised about the potential for civil commitment pursuant to the SVPA when pleading guilty to a sexual offense, defendant -- who pled guilty three years before Bellamy -- cannot rely upon Bellamy's new rule of law as support for his position. We thus affirm.

In 1997, defendant was indicted and charged with five counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(3); five counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); five counts of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(4)(b); and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).

On June 26, 2000, pursuant to a negotiated agreement, defendant pled guilty to one count of second-degree and two counts of third-degree endangering the welfare of a child. At the plea hearing, defendant acknowledged he had taken a photograph of a nude fifteen-year old simulating a sexual act, and that he had also taken photographs of two other nude minors for his own sexual gratification or the sexual gratification of others. Pursuant to the agreement, the prosecutor advised the trial judge that the State would not object to defendant being sentenced as a third-degree offender. As a result, the judge imposed concurrent five-year prison terms and community supervision for life. Defendant did not appeal.

In 2003, defendant was civilly committed pursuant to the SVPA. He appealed the order of commitment; we affirmed.

In August 2006 -- thirty-three months after he was civilly committed and nearly six years after he was sentenced --defendant filed a petition for post-conviction relief (PCR). The judge recognized that defendant failed to file the PCR petition within the five-year time-bar, R. 3:22-12, and held that defendant's delay was not excusable. Nevertheless, the judge examined the merits of defendant's petition and found no basis upon which relief could be granted. An order denying the PCR petition was entered on January 16, 2008.

Defendant appealed, raising the following arguments for our consideration:

I. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

II. DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL FOR HIS POST CONVICTION RELIEF PROCEEDINGS.

III. THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S CLAIMS AT THE POST CONVICTION RELIEF HEARING THAT HIS PLEA SHOULD BE WITHDRAWN SINCE THE JUDGE FAILED TO ADVISE DEFENDANT THAT CIVIL COMMITMENT WAS A CONSEQUENCE OF HIS PLEA BEFORE SENTENCING DEFENDANT AND DID NOT COMPLY WITH THE ADTC SENTENCING PROVISIONS UNDER N.J.S.A. 2C:47-1, N.J.S.A. 2C:47-2 AND N.J.S.A. 2C:47-3.

IV. DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE BARRED.

We find insufficient merit in the arguments contained in Points I, II and III to warrant discussion in a written opinion. R. 2:11-3(e)(2). As a result, we need not consider the arguments contained in Point IV. We add only the following comments.

There is no question that when defendant pled guilty to sex offenses in 2000, the sentencing judge did not advise him of the potential for civil commitment pursuant to the SVPA. We may assume for present purposes that defendant's trial attorney also failed to tell him of that possibility. Notwithstanding, as late as 2003, civil commitment pursuant to the SVPA was viewed as a collateral consequence of a guilty plea and, therefore, not something a judge was required to inquire about during a plea hearing. See, e.g., State v. Mumin, 361 N.J. Super. 370, 382, 386 (App. Div. 2003).

In Bellamy, the Court abrogated Mumin and held that fundamental fairness required that a defendant be advised when pleading to a sex offense of the potential for civil commitment pursuant to the SVPA. 178 N.J. at 139-40. The Court determined, however, that this "new rule should apply only to cases pending direct review at the time of the rule's announcement," i.e., December 11, 2003. Bellamy, supra, 178 N.J. at 142-43. Accordingly, defendant's contention that his trial attorney was ineffective in failing to advise defendant about the potential for commitment pursuant to the SVPA when he entered his guilty plea in 2000 is without merit.

Affirmed.

20091112

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