On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 96-10-1678.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 13, 2010
Before Judges Stern and Sabatino.
In May 1997, defendant entered a negotiated guilty plea to second degree sexual assault and to possession of cocaine in exchange for a recommended sentence of ten years in the custody of the Commissioner of the Department of Corrections.*fn1 On August 22, 1997, defendant was sentenced in accordance with the negotiated recommendation.
Subsequently, in March 2003, defendant was civilly committed under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to .27. On January 18, 2007, over five years after defendant's sentencing, defendant filed a petition for post conviction relief, claiming that the petition was to "correct an illegal sentence."*fn2 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 brief by counsel in support of the petition argued that the claim was not time barred, that defendant was provided "ineffective assistance of counsel" and was entitled to an "evidentiary hearing on" the subject, and that the failure to advise him of the potential SVPA commitment "render[ed] his guilty plea unknowing and involuntary, resulting in fundamental unfairness" and in a "denial of equal protection." 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 the plea. The Court, however, gave the holding only "pipeline" retroactivity. Id. at 141-43. Accordingly, the rule would not apply to this defendant's case. The Court also made clear that its ruling was not mandated by constitutional principles because the commitment was not a direct or penal sequence of the plea. Id. at 137-38.
POINT I: ABSENT NOTICE TO DEFENDANT THAT HIS PLEA TO SEXUAL ASSAULT MIGHT LEAD TO CIVIL COMMITMENT, DEFENDANT DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY, AND DIRECT-APPEAL COUNSEL WAS INEFFECTIVE FOR NOT ADDRESSING THE ISSUE.
POINT II: TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ADVISING DEFENDANT THAT BY PLEADING GUILTY TO SEX[UAL] ASSAULT HE FACED POSSIBLE CIVIL COMMITMENT, AND POST-CONVICTION COUNSEL VIOLATED R. 3:22-6(d) BY DISMISSING THE CLAIM AGAINST TRIAL COUNSEL DESPITE THE FACT THAT DEFENDANT RAISED IT IN HIS PRO SE PETIION FOR POST-CONVICTION RELIEF.
A. R. 3:22-6(d) Prohibited PCR Counsel From Dismissing McDonald's Pro Se Claim Against Trial Counsel.
B. Defendant's Pro Se Claim, That His Plea Was Not Entered Knowingly And Voluntarily Because Trial Counsel Did Not Inform Him of Possible Civil Commitment, Presents a Prima Facie Case That Trial Counsel Provided Ineffective Representation.
POINT III: WHERE THE SUBSTANCE OF DEFENDANT'S CLAIM ON PCR IS THAT HIS GUILTY PLEA IS INVALID BECAUSE HE WAS NOT TOLD IT COULD LEAD TO CIVIL COMMITMENT, HE SHOULD BE PERMITTED TO FILE HIS PCR OUT OF TIME BECAUSE: 1) HE DID NOT LEARN THAT HE FACED COMMITMENT UNTIL AFTER THE DEADLINE FOR APPLYING ...