On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-01-0188.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2009
Before Judges Payne and Miniman.
Defendant, Frederick Tenner, pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(a), and third- degree endangering the welfare of a minor, N.J.S.A. 2C:24-4, on November 1, 1996 and was sentenced on January 25, 1998 to fifteen years in custody. He did not appeal. However, on June 8, 2006, following an order of March 13, 2006 that he be committed to the Special Treatment Unit as a sexually violent predator pursuant to the New Jersey Sexually Violent Predator Act,*fn1 defendant petitioned for post-conviction relief (PCR), seeking to vacate his plea. His petition was denied.
Defendant has appealed, claiming:
THE DOCTRINE OF FUNDAMENTAL FAIRNESS REQUIRES THAT DEFENDANT SHOULD BE ALLOWED TO RETRACT HIS GUILTY PLEA TO AGGRAVATED SEXUAL ASSAULT AND ENDANGERING THE WELFARE OF A CHILD, SINCE HE WAS NOT ADVISED THAT THE PLEA COULD RESULT IN INDEFINITE CIVIL COMMITMENT PURSUANT TO THE SEXUALLY VIOLENT PREDATOR ACT.
On appeal, defendant argues that he did not enter his appeal voluntarily and intelligently because he was not advised that he could be civilly committed as a result of entering that plea. Defendant's PCR petition is time barred by Rule 3:22-12, which requires the filing of such petitions within five years of sentencing, unless defendant's excusable neglect is demonstrated, and procedurally barred by R. 3:22-3, which provides that a PCR petition is not a substitute for a direct appeal.
Furthermore, defendant's attempt to withdraw his plea is barred by the Supreme Court's decision in State v. Bellamy, 178 N.J. 127, 140-43 (2003), affording only pipeline retroactivity to its determination that fundamental fairness requires that a trial judge, prior to accepting a plea to a predicate offense under the Sexually Violent Predator Act, must ensure that defendant understands that, as the result of his plea, there is a possibility of a future commitment for an indefinite period of up to life. Because defendant's conviction was not appealed, and thus was not in the pipeline when Bellamy was decided, pipeline retroactivity is inapplicable. As an intermediate appellate court, we lack the power to overrule the Supreme Court's determination on the extent of the retroactive application of its decision.
As a final matter, the plea form signed by defendant contains the following:
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 answered "yes" to this question. While that question did not address the length of such commitment, it is clear that the possibility of ...