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State of New Jersey v. Francisco Reyes

January 28, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANCISCO REYES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-01-0270.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2011

Before Judges Axelrad and J. N. Harris.

Defendant Francisco Reyes appeals the denial of his application for post-conviction relief (PCR) on procedural and substantive grounds. Because the application was clearly time-barred, we affirm.

In an eleven-count indictment, defendant was charged by an Essex County Grand Jury on January 18, 1990, with three instances of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); one instance of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); two instances of second-degree sexual assault, N.J.S.A. 2C:14-2(b); two instances of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a)(3); one instance of third-degree terroristic threats, N.J.S.A. 2C:12-3; and two instances of fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. At the time, the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, had not yet been adopted.

On May 21, 1990, defendant pled guilty to one count of first-degree kidnapping and one count of first-degree aggravated sexual assault. In exchange, the State promised to dismiss all of the remaining charges, and to recommend a term of imprisonment not to exceed twenty years, with ten years of parole ineligibility. In his sworn plea allocution, defendant acknowledged that he would be examined at the Adult Diagnostic and Treatment Center (ADTC) and that he might be required to serve his sentence at the ADTC in Avenel, where the normal parole guidelines would not apply. Defendant moved to withdraw his plea, but his motion was denied on October 11, 1991.

Defendant was sentenced on February 24, 1992. By that time, the ADTC determined that he was a not a repetitive and compulsive offender and that he would not serve his imprisonment in Avenel and not be specially classified for parole. The sentencing court imposed the plea agreement's term of twenty years with a ten-year period of parole ineligibility.

Defendant appealed his conviction on the ground that the sentence was excessive. We affirmed the judgment of conviction on October 19, 1993.

On December 23, 2002, defendant completed the mandatory ten-year period of parole ineligibility and he was transferred to the Special Treatment Unit (STU) in Kearny as a sexual predator under the SVPA. Defendant waited more than five years after the transfer to the STU to file his pro se application for PCR on July 21, 2008. The matter was heard and denied on October August 21, 2009, and this appeal followed.

Defendant raises the following arguments on appeal:

POINT I:

THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS THE RETROACTIVE APPLICATION OF THE SEXUALLY VIOLENT PREDATOR ACT TO DEFENDANT RENDERS ...


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