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State v. Creveling

September 1, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK CREVELING, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-01-0004.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 22, 2010

Before Judges Carchman and Parrillo.

Defendant Mark Creveling appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

These are the relevant facts adduced from the record. On August 17, 1997, defendant, who was then seventeen years old, touched the genitals of a six year old boy and was charged with aggravated sexual assault, N.J.S.A. 2C:14-2(b). Defendant voluntarily waived his juvenile status, see Cannel, New Jersey Criminal Code Annotated, Comment 4 on N.J.S.A. 2C:4-11, and the matter was transferred to the Law Division. Defendant entered a plea of guilty, and the State recommended a five year sentence. An evaluation conducted at the Adult Diagnostic and Treatment Center (ADTC) concluded that defendant was a compulsive and repetitive sex offender, a finding not challenged by defendant. On April 13, 1998, defendant was sentenced to a five year term at the ADTC.

At the time of the plea and sentence, the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, had not been enacted, and at neither time was defendant advised of the possibility of civil commitment pursuant to the SVPA.

At the completion of defendant's penal sentence, the State moved to commit defendant pursuant to the SVPA, which was then in effect, and defendant was involuntarily committed in March 2001. During defendant's commitment, the order of commitment has been reviewed periodically. At the most recent review, a finding was made that defendant continues to pose a danger to himself and others. Defendant neither appealed the original sentence nor the SVP commitment.

In June 2006, eight years after the imposition of his sentence, defendant filed for PCR alleging ineffective assistance of counsel. He claimed that his "incarceration" was unwarranted and that he had ineffective assistance of counsel. Among other claims, he asserts that his attorney failed to inform him of the possibility of a "retroactive sentence" under the SVPA.

In April 2007, defendant's petition was denied. Judge DeVesa concluded that defendant had failed to establish ineffective assistance of counsel and further that defendant's PCR was time-barred. The judge noted that defendant could avail himself of additional remedies, specifically appealing the SVP reviews determining that he is a danger to himself and others. This appeal followed.

On appeal, defendant raises the following issues:

I. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL.

A. PCR counsel failed to address the issue of time bar pursuant to R. 3:22-12 resulting in the court finding the matter time barred.

B. PCR counsel's argument was ineffective, relied erroneously upon State v. Bellamy and failed to raise the appropriate arguments that could afford the defendant appropriate relief for violations of due process and fundamental fairness.

C. PCR counsel produced none of the documentary evidence that she claimed trial counsel should have produced, resulting in the denial of the claim for ineffective assistance of counsel.

II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND THE MATTER SHOULD BE ...


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