On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, Indictment No. 95-09-1027-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 13, 2010
Before Judges Stern, Sabatino and J. N. Harris.
On January 22, 1996 defendant entered a negotiated guilty plea to first degree aggravated sexual assault in exchange for a recommended sentence of twelve years in the custody of the Commissioner of the Department of Corrections. On May 10, 1996, defendant was sentenced in accordance with the negotiated recommendation. In June 2006 defendant filed a petition for post conviction relief claiming that the petition was to "correct an illegal sentence."*fn1
In the interim in May 2003 defendant was civilly committed under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 et seq. ("SVPA"). The petition asserted that his attorney "failed to inform him of the future potential possibility of a retroactive consequence in being subjected to commitment under New Jersey's S.V.P. Act at the completion of his term of incarceration." The supplementary certification stated the same. He argued that he "should be permitted to withdraw his plea." He added that "had petitioner known that he would be committed to the SVP Unit for what may be the remainder of his life, he would have taken this matter to trial." He also claimed counsel was ineffective for not advising him of the potential consequence of his plea. Defendant raised additional grounds for relief in the supplementary certification. He also requested an evidentiary hearing. The petition was denied.
In State v. Bellamy, 178 N.J. 127, 138 (2003), the Supreme Court held that a defendant exposed to the possibility of commitment under the SVPA as a result of a guilty plea must be so advised at the time of plea. The Court, however, gave that holding only "pipeline" retroactivity, id. at 142, so the rule would not apply to defendant's case, and the Court also made clear its ruling was not mandated by constitutional principles because the commitment was not a direct or penal consequence of the plea. Id. at 138.
THE DOCTRINE OF FUNDAMENTAL FAIRNESS REQUIRES THAT DEFENDANT BE ALLOWED TO RETRACT HIS GUILTY PLEA TO AGGRAVATED SEXUAL ASSAULT SINCE HE WAS NOT ADEQUATELY ADVISED THAT THE PLEA COULD RESULT IN LIFELONG CIVIL COMMITMENT PURSUANT TO THE SEXUALLY VIOLENT PREDATOR ACT.
Defendant claims he would have gone to trial if he knew he might be committed for the rest of his life. That may be true if he felt there was nothing to lose. He further contends that the rule in Bellamy violates his equal protection and due process rights because he has been treated differently than others who were given the warning as part of the plea colloquy. But we know of no principle of law requiring retroactive application of the requirements of a plea colloquy, particularly when the Supreme Court has held we are dealing with a civil commitment which is not a direct or penal consequence of the plea. In any event, only the Supreme Court can reconsider its ruling on retroactivity. Moreover, counsel cannot be faulted for not advising defendant about the SVPA before it was enacted in 1998, L. 1989, c. 71, see State v. J.K., 407 N.J. Super. 15, 20-21 (App. Div.), certif. denied, 200 N.J. 209 (2009), and to the extent a commitment flowed from a sexual assault at the time of the plea in this case, defendant was asked if he understood the potential consequences under the law as it stood at the time of the plea.
Specifically, after being advised of the sex offender evaluation to be conducted and of the parole consequences of a sentence to the Adult Diagnostic and Treatment Center and of Megan's Law, defendant was asked if he understood that "in addition, if you have served your sentence and you still are not cured, you could be subject to an involuntary commitment because of your illness? The illness being repetitive sexual compulsion." The defendant answered in the affirmative.
The other issues raised in the petition, and asserted on appeal, are time barred, R. 3:22-12, and were inadequately supported to warrant an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, ...