March 1, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KALDOUN HOMSI, DEFENDANT-APPELLANT.
On Appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 00-10-1249.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2010
Before Judges J. N. Harris and Newman.
In June 2001, defendant negotiated for and entered a guilty plea to second degree attempted sexual assault of a fifteen-year old, N.J.S.A. 2C:14-2(c)(4) and N.J.S.A. 2C:5-1, in exchange for a recommended sentence of seven years in the custody of the Commissioner of the Department of Corrections, including five years incarceration before parole eligibility.*fn1 In conformity with this agreement, on September 28, 2001, defendant was sentenced to a lesser term of five years in prison with a five-year period of parole ineligibility.
Defendant never appealed, and instead served his full sentence. Subsequently, in September 2006, as the original sentence was about to expire, defendant was civilly committed pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to.38 (SVPA). On January 9, 2007, more than five years after defendant's judgment of conviction, defendant filed a pro se petition for post conviction relief, claiming that [p]petitioner was denied effective assistance of counsel in that he was never advised that he would be screened for civil commitment under the SVPA (N.J.S.A. 30-4:24.2 et seq.)[(sic)] at the end of his prison term, and that if committed might be detained indefinitely.
After defense counsel was assigned, defendant argued in the Law Division that the claim was not time barred, that defendant was provided ineffective assistance of counsel, that he was entitled to an evidentiary hearing on the subject, and lastly that the failure to advise him of the potential SVPA commitment rendered his guilty plea a nullity. This petition was denied in its entirety.
Defendant now argues the following:
Point I: It was Judicial Error to Deny the Motion for Post-Conviction Relief.
Point II: The Defendant is Entitled to a Remand to the Trial Court for an Evidentiary Hearing to Determine The Merits of his Contention that He was Denied the Effective Assistance of Counsel.
Point III: It was Judicial Error to Accept a Plea Without a Factual Finding that there was a Full Disclosure of the Consequences of that Plea.
We find these arguments to be of insufficient merit to warrant extensive discussion. See R. 2:11-3(e)(2). However, we add the following brief comments.
In State v. Bellamy, 178 N.J. 127, 138 (2003), the Supreme Court held that a defendant faced with 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, as this ruling was issued two years after defendant's plea allocution, the Bellamy rule does not apply to 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 consequence of the plea. Id. at 137-38.
Defendant claims that he entered a guilty plea without disclosure of its full consequences, specifically that "the plea would carry civil commitment after completion of his prison term" and that it was "judicial error to accept this plea without a factual finding on the record that there was a full disclosure of the consequences of the plea." We know of no legal principle requiring retroactive application of the requirements of such a plea colloquy, particularly when the Supreme Court explicitly has held that a civil commitment is not a direct or penal consequence of the plea. In any event, only the Supreme Court can reconsider its ruling on retroactivity. State v. J.K., 407 N.J. Super. 15, 20-21 (App. Div.), certif. denied, 200 N.J. 209 (2009).
More importantly, at the time defendant entered a plea of guilty--more than five years earlier--he answered "yes" to the following written question:*fn2
8. Do you understand that if you are confined at the Adult Diagnostic and Treatment Center or any other facility for commission of a sexually violent offense, you may upon completion of your term of confinement be involuntarily committed to another facility if the court finds, after a hearing, that you are a sexually violent predator in need of involuntary civil commitment?
Plainly, defendant understood that he was exposed to civil commitment at the completion of his prison term if he were found to be "a sexually violent predator in need of involuntary civil commitment."
Any other issues raised in the Law Division and continued on appeal, if they are not deemed directly related to the above, are time barred, Rule 3:22-12, and are inadequately supported to warrant an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We are convinced that defendant has not established a serious question about his guilt and therefore conclude that his situation is neither exceptional nor extraordinary. We cannot conclude that there is an injustice sufficient to invoke Rule 1:1-2, in order to relax Rule 3:22-12's procedural time bar.
The denial of the petition for post conviction relief is affirmed.