July 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 89-05-2617.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 23, 2011 - Decided
Before Judges Fisher andGrall.
In this appeal, defendant argues that the trial court erred in denying his petition for post-conviction relief (PCR). Finding no merit in his arguments, we affirm.
On January 30, 1990, defendant pled guilty, pursuant to a plea agreement, to: first-degree kidnapping, N.J.S.A. 2C:13-1b(1); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2; third-degree making a terroristic threat, N.J.S.A. 2C:12-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. On May 4, 1990, defendant was sentenced, in accordance with the plea agreement, to an aggregate fifteen-year prison term, subject to a five-year period of parole ineligibility.
In November 2001, defendant was civilly committed and transferred to the Special Treatment Unit (STU), pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On July 23, 2002, defendant moved to enforce the plea agreement, arguing that his transfer to the STU after completion of his prison term breached the terms of the plea agreement; that motion appears never to have been ruled upon.
On August 11, 2009, defendant filed a pro se PCR petition, which was later amended by assigned counsel. Defendant argued that: his PCR petition was timely filed; he was never notified and never given a hearing to contest his commitment; his trial attorney was ineffective for failing to inform him about the potential for civil commitment following the service of his prison term; and this matter falls within the limited pipeline retroactivity provided by State v. Bellamy, 178 N.J. 127, 142-43 (2003). He also sought an evidentiary hearing to develop his arguments. Judge Garry J. Furnari did not conduct an evidentiary hearing and denied relief for reasons thoroughly discussed in his written opinion of May 11, 2010.
Defendant appealed, presenting the following arguments for our consideration:
I. THE COURT ERRED BY RULING THAT [DEFENDANT'S] PETITION FOR POST CONVICTION RELIEF IS PROCEDURALLY BARRED PURSUANT TO R. 3:22-3.
II. THE PCR COURT ERRED IN NOT FINDING THAT [DEFENDANT] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
We affirm substantially for the reasons set forth in Judge Furnari's written opinion, adding only the following brief comments.
In 2003, the Bellamy Court determined that counsel must advise clients of the potential for civil commitment when pleading guilty to an SVPA predicate offense. 178 N.J. at 138. Bellamy, however, was given only limited retroactive effect. Id. at 142-43. Here, defendant pled guilty to a predicate offense years before the SVPA was adopted and, obviously, could not have been advised of its impact.
In addition, when Bellamy was decided, defendant did not have a pending direct appeal. Defendant's contention that the undecided motion to enforce the plea agreement that he filed in 2002 is the functional equivalent of a direct appeal pending at the time Bellamy was decided in 2003 is frivolous. To accept defendant's position would essentially require that we expand Bellamy's retroactivity holding -- relief that is beyond our authority to give. See State v. J.K., 407 N.J. Super. 15, 20 (App. Div.), certif. denied, 200 N.J. 209 (2009).
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