On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 96-12-1435.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2012
Before Judges Yannotti and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Defendant pled guilty, pursuant to a plea agreement, to second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c), and third-degree terroristic threats, N.J.S.A. 2C:12-3(a), and was sentenced on July 28, 1997. On the attempted sexual assault charge, he was sentenced to ten years at the Adult Diagnostic and Treatment Center (ADTC), with a parole ineligibility period of five years, community supervision for life and the condition that he comply with all applicable provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23. He was sentenced to a concurrent term of five years with a parole ineligibility period of two-and-one-half years on the terroristic threats charge. The sentencing court's written statement of reasons for the sentence included the following:
This is defendant's fourth adult sex related conviction. He committed this crime within weeks after his parole from the ADTC. The ADTC found him to come within the purview of the Sex Offender Act. The evaluator said he was a sexually dangerous person. The facts of this case bolster this conclusion. He attacked a woman, a total stranger, while she was trying to make a phone call on the street.
Defendant did not appeal from his conviction or sentence. The New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, was enacted in 1998 and became effective August 12, 1999. In November 2003, prior to defendant's scheduled release from prison, he was involuntarily committed pursuant to the SVPA.
Approximately eleven years after he was sentenced, defendant filed a pro se PCR petition on March 27, 2008. Among the issues he raised in the petition was an allegation that he was denied the effective assistance of counsel because he was not advised at the time of his guilty plea that he would be civilly committed after completing his sentence and the argument that the retroactive application of the SVPA was unconstitutional.
On December 11, 2008, assigned counsel filed a brief in support of defendant's PCR petition, raising the following issues: (1) defendant should be permitted to withdraw his guilty plea because he was not advised of the applicability of the SVPA or, in the alternative, the SVPA should not apply to him; (2) defendant's conviction should be reversed because he was not advised that the SVPA would apply to him; (3) applicability of the SVPA to defendant is a direct consequence of his guilty plea; (4) defendant was denied the effective assistance of counsel at his plea hearing and sentencing; and (5) defendant's PCR petition was timely.
At no time did defendant support his petition with a certification in which he stated that he would not have entered a guilty plea pursuant to the plea agreement if he had known he would be subject to civil commitment following the completion of his sentence. In addition, he has presented no certification in which he asserts facts to support the argument that his delay in filing a petition for PCR was the result of excusable neglect.
The PCR judge denied defendant's petition without an evidentiary hearing. In this appeal, defendant presents the following issues for our consideration:
BECAUSE PETITIONER WAS NOT ADVISED ABOUT THE APPLICABILITY OF THE SEXUALLY VIOLENT PREDATOR ACT TO HIM, FUNDAMENTAL FAIRNESS DICTATES THAT HE SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA AND TAKE HIS CASE TO TRIAL, OR THE COURT SHOULD HOLD ...