On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 03-12-1145 and 03-12-1168.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2009
Before Judges Graves and Newman.
Defendant M.N. appeals from an order denying his petition for Post Conviction Relief (PCR). The basis for his petition was that he was not advised of the implications of the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27 to -27.38. The SVPA was in effect when he pled guilty to two separate sexual offenses that placed him under the purview of the Act. Defendant contends that if he had known of the SVPA's application which could result in an indefinite potential life commitment beyond the sentence he agreed to serve, he would not have entered into a guilty plea. We now affirm.
The relevant factual background may be summarized as follows. On May 7, 2004, when he was twenty-six years old, defendant pled guilty to first-degree aggravated sexual assault and second-degree sexual assault. The sexual assault involved two young girls, one who was twelve-years of age, and the other was fifteen. In exchange for the guilty pleas, the State agreed to dismiss other charges and to recommend a ten-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the first-degree sexual assault with a consecutive five-year term for the second-degree sexual assault. These were the minimum terms for the respective degrees of crime.
At sentencing on October 15, 2004, the court found that defendant was a suitable candidate for treatment at Avenel. However, through counsel, defendant indicated he was unwilling to participate in the program at Avenel. Accordingly, defendant was sentenced, in accordance with the plea agreement, to an aggregate sentence of fifteen years imprisonment with eight years and six months of parole ineligibility.
In his PCR petition, defendant certified that his attorney never told him that he could be confined pursuant to the SVPA after he served his sentence. He claimed that he would not have pled guilty if he knew he could be potentially committed for the rest of his life under the SVPA. His then-attorney certified that he had no recollection of discussing the SVPA with defendant.
Both defendant and his attorney testified at a hearing on March 14, 2008. Defendant did not claim that he wanted to withdraw his guilty plea because he was innocent. Furthermore, he agreed he received a "good deal" if he was not further confined under the SVPA. He admitted that he never asked his attorney to file an appeal, even though he claimed in his PCR petition that his attorney was ineffective for failing to file an appeal, to fully explain community service for life, and to explain the ramifications of the SVPA.
In denying defendant's petition for PCR, Judge Geiger rejected the State's contention that defendant's application was premature because he was not at the end of serving his sentence and scheduled for release when his candidacy for the SVPA would be under consideration. The judge noted that further delay in deciding the issue could impact the ability of the parties to try the case. Judge Geiger acknowledged State v. Bellamy, 178 N.J. 127 (2003), which was decided on December 11, 2003, several months before defendant entered his plea on May 7, 2004, and which held that fundamental fairness requires the trial court to "ensure that a defendant understands that, as a result of his or her plea, there is a possibility of future commitment" under the SVPA and "that such commitment may be for an indefinite period, up to and including lifetime commitment." Id. at 139-40.
Notwithstanding, Judge Geiger found that defendant was not a credible witness when he maintained that he would not have entered a guilty plea if he had known that the SVPA could potentially result in his further confinement beyond the serving of the sentence to which he had agreed. Judge Geiger further observed that there was overwhelming proof of his guilt and that defendant was facing an aggregate sentence of thirty to forty years, with a seventeen-year parole disqualifier when his attorney negotiated the favorable plea agreement. Even defendant acknowledged that it was a beneficial plea agreement, and the court agreed.
Given defendant's lack of credibility, the strength of the State's case, and the favorable plea agreement, the PCR judge rejected his claim that he would not have entered a guilty plea if he had known he would face the possibility of future civil commitment under the SVPA. As a result, there was no showing that defendant was ...