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State v. Ivery

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 13, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN IVERY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 88-06-0711.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2010

Before Judges Fisher and Sapp-Peterson.

In 1988, pursuant to agreement, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4); he was sentenced to a fifteen-year prison term with a seven-and-one-half-year period of parole ineligibility. Defendant did not file an appeal.

Pursuant to the judgment of conviction, defendant was incarcerated at the Adult Diagnostic and Treatment Center in Avenel for nine and one-half years, after which defendant was transferred to Northern State Prison where he served nearly ten years on a parole violation.*fn1 Defendant was not thereafter released. Instead, in August 2005, shortly before the second term was fully served, defendant was involuntarily committed, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, to the Special Treatment Unit, where he presently remains.

On November 26, 2007 -- more than nineteen years after entry of the judgment of conviction -- defendant filed a petition for post-conviction relief (PCR). Defendant argued in the trial court that he was denied the effective assistance of counsel because he was not advised of the consequences of his guilty plea; specifically, defendant argued he was not told that involuntary commitment could occur after completion of his prison term. Defendant also claimed that a proper factual basis was not elicited for his guilty plea and that the sentence imposed was illegal. After hearing the argument of counsel, the PCR judge denied relief for the reasons expressed in a thorough written decision.

Defendant appealed, raising the following arguments for our consideration:

I. THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING, AND IN DENYING THE PETITION.

II. THE PCR COURT ERRED IN DENYING DEFENDANT'S CLAIM FOR RELIEF PURSUANT TO STATE V. BELLAMY, 178 N.J. 127 (2003).

III. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL (NOT RAISED BELOW).

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

Although defendant's delay in seeking post-conviction relief regarding a 1988 judgment of conviction presents an insurmountable obstacle in these circumstances, the argument that trial counsel should have advised defendant regarding the potential for involuntary civil commitment is wholly without merit for one simple reason: the SVPA was not enacted until 1998. Defense counsel could not have known the parameters of the SVPA or its potential application to defendant in the future when defendant pled guilty ten years before the SVPA's enactment. Moreover, the obligation imposed by Bellamy, supra, 178 N.J. at 138-40 -- that defense counsel are required to inform defendants of the possibility of civil commitment as a result of a guilty plea -- was given only limited retrospective effect. Id. at 143. Since defendant never filed a direct appeal of the 1988 judgment, Bellamy's holding provides no support for defendant's arguments.

Affirmed.


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