May 31, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF I.B., SVP-641-12.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-641-12.
Joseph E. Krakora, Public Defender, attorney for appellant I.B. (Thomas G. Hand, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).
Before Judges Simonelli and Koblitz.
By leave granted, appellant I.B. appeals from the May 17, 2012 Law Division order, which denied his motion to dismiss the petition for civil commitment filed pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to - 27.38. We affirm.
In 1979, I.B. was convicted of abduction and assault with intent to carnally abuse a seven-year-old girl, and sentenced to ten to twelve-years in prison. That same year, I.B. was convicted of charges relating to the attempted abduction of an adult female, and sentenced to ten years in prison. In 1984, he was convicted of sexually assaulting a fourteen-year-old girl, and sentenced to twelve years in prison. He was paroled in August 1992, but violated parole and was returned to prison.
Three months after his release from prison, I.B. abducted and sexually assaulted an adult female. In 1995, he pled guilty to first-degree kidnapping, N.J.S.A. 2C:13-1b, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (3) or (4). He was sentenced to a thirty-year term of imprisonment with fifteen years of parole ineligibility to be served at the Adult Diagnostic Treatment Center (ADTC). With jail credits, I.B.'s period of parole ineligibility ended in November 2009.
Four months before the end of his parole ineligibility period, in July 2009, the Department of Corrections (DOC) transferred I.B. to East Jersey State Prison (EJSP) after it was determined he was not amenable to sex offender treatment and posed a risk to other vulnerable inmates. Before the transfer, the ADTC reviewed I.B.'s status and determined that despite his ten years of treatment, he failed to resolve his power and control issues that played an integral role in his sex offender dynamics and resulted in his sexual coercion of other vulnerable inmates. The ADTC concluded that I.B.'s behavior created a potentially dangerous situation and undermined the treatment of other inmates. I.B. was notified about, and took part in, this review process. I.B. did not challenge the DOC's decision to transfer him to EJSP.
During his incarceration at EJSP, I.B. submitted to four evaluations, all of which determined he was not amenable to treatment at the ADTC. I.B. did not challenge these determinations. I.B. was diagnosed as suffering from an antisocial personality disorder. Psychological testing revealed he had a Static-99R score of 7, which placed him at a high risk to re-offend sexually.
In December 2011, Kristi Corcoran, Psy.D., conducted a SVP risk assessment and concluded that I.B. was at high risk to sexually reoffend and should be referred for further assessment regarding his suitability for commitment as a sexually violent predator. Thereafter, a psychiatrist found that I.B. suffered from a mental abnormality, as defined by the SVPA, or personality disorder that made him likely to engage in acts of sexual violence if not confined to a secure facility for control, care and treatment. The psychiatrist concluded that I.B. "has serious difficulty controlling his sexually offending behavior such that he is highly likely to sexually reoffend in the foreseeable future if not confined to a secure facility for treatment."
I.B. was to max out on May 11, 2012. In April 2012, the State filed a petition to commit him as a sexually violent predator. The court found probable cause to believe that I.B. was a sexually violent predator and entered an order temporarily committing him to the Special Treatment Unit pending a final hearing.
I.B. filed a motion to dismiss, arguing that the DOC violated his due process rights by transferring him from the ADTC, which deprived him of two-and-one-half years of treatment that could have mitigated his risk so that he would not have been committable under the SVPA after his max-out date. The trial judge denied the motion, finding that defendant's challenge to the transfer was untimely, and the issue was moot because I.B. had completed his sentence. This appeal followed.
On appeal, I.B. contends he should be returned to the ADTC to serve more time in a treatment facility because the DOC violated his due process rights by transferring him without finding that further sex offender treatment was "futile." Alternatively, I.B. requests a remand to the trial court to determine whether the DOC acted arbitrarily, capriciously, and unreasonably in determining that his treatment was "futile."
I.B. has served his sentence and cannot be returned to the ADTC. Thus, his request for a return to the ADTC is moot. See Pressler & Verniero, Current N.J. Court Rules, comment 1.2.1a on R. 2:8-2 ("Mootness is ordinarily defined as the inability of a court because of attendant circumstances to grant judicial relief").
In addition, I.B.'s challenge to the transfer was untimely. The time to appeal the transfer did not begin when the State sought I.B.'s civil commitment. It began in July 2009, when the DOC made the final agency decision that he must be transferred from the ADTC because he was not amenable to sex offender treatment. I.B. failed to appeal the DOC's decision within forty-five days of the date of the final decision. R. 2:4-1(b).
In any event, "futility" is not the criterion for transferring an inmate from the ADTC. Rather, the DOC may "transfer out of the [ADTC] . . . any offender not participating in or cooperating with the sex offender treatment provided in the [ADTC] and any offender who is determined by the [DOC] to be no longer amenable to sex offender treatment." N.J.S.A. 2C:47-4.1. We are satisfied that the DOC's determination that I.B. was no longer amenable to sex offender treatment was not arbitrary capricious and unreasonable and was fully supported by substantial credible evidence in the record as a whole Ramirez v Dept of Corr., 382 N.J.Super 18 23 (App Div 2005)