On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-11-1422.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Skillman.
Defendant was indicted for second-degree sexual assault, in violation of N.J.S.A. 2C:14-2(c)(4), and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). Pursuant to a plea agreement, defendant pled guilty to the endangering the welfare of a child charge and the State dismissed the sexual assault charge. The trial court sentenced defendant to a five-year term of imprisonment, which he was required to serve at the Adult Diagnostic and Treatment Center in Avenel. On defendant's appeal, which we heard on an excess sentence calendar, see R. 2:9-11, we affirmed defendant's sentence as not excessive. State v. Schemelia, A-5762-03 (Dec. 14, 2004).
When defendant completed service of his sentence, he was civilly committed on January 26, 2007 pursuant to the Sexually Violent Predator Act (SVPA). N.J.S.A. 30:4-27.24 to -27.38.
On February 27, 2007, defendant filed a petition for post-conviction relief, and on June 2, 2008, assigned counsel filed a brief in support of defendant's petition. One of the arguments presented in that petition and supporting brief was that defendant was entitled to have his guilty plea vacated because the trial court had failed to advise him of the potential for civil commitment for life upon the completion of service of his five-year sentence. Defendant also argued that his trial counsel had been ineffective in failing to advise him about the potential for civil commitment for life as a result of his guilty plea and that his appellate counsel was ineffective in failing to raise these arguments in his direct appeal.
The trial court initially decided that "there was an obligation by either the Court or by [defense counsel] to advise [R.S.] that he possibly could have had a lifetime period . . . of civil commitment . . . as I read Bellamy," and that because defendant did not receive this advice before pleading guilty, he was entitled to retract his guilty plea. However, the court subsequently reconsidered its initial decision on its own motion and determined that defendant was not entitled to post-conviction relief. The court set forth its reasons for the denial of defendant's petition in a written opinion dated May 7, 2009, concluding that "at the time of defendant's plea and sentence, . . . neither the trial court nor defense counsel was required to inform defendant of his possible commitment under the SVPA because it was considered a collateral consequence."
On appeal from the denial of his petition, defendant presents the following arguments:
POINT I: THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY. DEFENDANT HAD NEVER BEEN ADVISED THAT HE COULD BE SUBJECT TO "LIFETIME COMMITMENT" UNDER THE PROVISIONS OF THE SEXUALLY VIOLENT PREDATOR ACT; NOR DID HE UNDERSTAND WHAT CIVIL COMMITMENT ENTAILED.
A) DEFENDANT IS ENTITLED TO RETROACTIVE APPLICATION OF THE REQUIREMENTS OF BELLAMY SINCE DEFENDANT HAD NOT YET EXHAUSTED ALL AVENUES OF DIRECT REVIEW ON THE DATE BELLAMY WAS DECIDED.
B) ASSUMING, ARGUENDO, THAT DEFENDANT IS NOT ENTITLED TO RETROACTIVE APPLICATION OF THE REQUIREMENTS OF BELLAMY, THE COURT SHOULD NONETHELESS APPLY BELLAMY DUE TO FACTORS PECULIAR TO THIS DEFENDANT.
C) THE PLEA WAS NOT MADE KNOWINGLY AND VOLUNTARILY SINCE DEFENDANT WAS NEVER ADVISED THAT HE COULD BE SUBJECT TO "LIFETIME COMMITMENT." DEFENDANT MUST, ...