STATE OF NEW JERSEY v. W.D.A

 
(NOTE: The status of this decision is .)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1362-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

W.D.A.,

Defendant-Appellant.

______________________________________

December 3, 2010

 

Submitted November 17, 2010 - Decided

 

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 93-10-3769 and 94-11-3921.

 

Yvonne Smith Segars, Public Defender, attor-ney for appellant (Rasheedah Terry, Desig-nated Counsel, on the brief).

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney Gen-eral/Acting Essex County Assistant Pros-ecutor, of counsel and on the brief).

 

PER CURIAM

In this appeal of an order denying post-conviction relief (PCR), defendant claims he had the right to retract guilty pleas entered more than ten years earlier because he was not advised he could potentially be committed as a sexually violent predator as a result. Although the Supreme Court held in State v. Bellamy, 178 N.J. 127, 139-40 (2003) that defendants must be informed of the possibility of civil commitment when pleading guilty to a predicate offense, the Court also limited the class of those who may seek relief to those with "cases pending direct review" when Bellamy was decided, id. at 142. Because this case was not pending direct review when Bellamy was decided, we affirm.

The circumstances are relatively simple. Defendant pled guilty to first-degree aggravated sexual assault and other offenses in 1994 and second-degree aggravated sexual assault and other offenses in 1995. He was sentenced in both matters in 1995. In the first matter, defendant was sentenced to the time he had already served in the county jail; in the second, the judge imposed an aggregate ten-year prison term, with a five-year period of parole ineligibility.

In 2001, the State petitioned for defendant's commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38. The application was granted, and we affirmed defendant's direct appeals of both the original commitment order and an order continuing commitment. In re Commitment of W.D.A., Nos. A-1591-02 and A-6604-02 (App. Div. Nov. 15, 2006).

Defendant filed a PCR petition on December 14, 2006, arguing he had a right to retract his guilty plea because he was not informed of the potential for civil commitment. The trial judge denied the application on June 23, 2008.

Defendant appealed, arguing, in a single point:

W.D.A. DID NOT ENTER INTO A VOLUNTARY, KNOWING, AND INTELLIGENT GUILTY PLEA SINCE HE DID NOT RECEIVE NOTICE THAT SAID PLEA COULD RESULT IN A LIFE-LONG CIVIL [COMMIT-MENT] UNDER THE [SVPA].

 

We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Although defendant's delay in seeking post-conviction relief regarding the 1995 judgments of conviction presents an insurmountable obstacle in these circumstances, the argument that defendant should have been advised about the potential for involuntary civil commitment is wholly without merit for one simple reason: the SVPA was not enacted until 1998. Defendant's trial counsel could not have known the parameters of the SVPA or its potential application in the future when defendant pled guilty before the SVPA's enactment. Moreover, the obligation imposed by Bellamy -- that defendants be informed of the possibility of civil commitment as a result of a guilty plea -- was given only limited retrospective effect. 178 N.J. at 143. Since defendant never filed a direct appeal of the judgments of conviction, Bellamy's holding offers him no relief.

Lastly, defendant seizes upon the fact that, in setting the parameters of pipeline retroactivity, the Bellamy Court mentioned that it "lack[ed] . . . data regarding the number and kinds of cases that would be affected by a rule of complete retroactivity and the impact that complete retroactivity would have on the administration of justice." Id. at 142. In light of these comments, defendant contends that the scope of retroactivity should be reconsidered. We reject this for the reasons expressed in State v. J.K., 407 N.J. Super. 15, 19-21 (App. Div.), certif. denied, 200 N.J. 209 (2009). Indeed, even if there was merit in the argument that the Court may have imposed different parameters if greater data had been available or provided -- and might yet do so -- defendant has not alluded to any additional data that might suggest some reasonable alternative to the pipeline retroactivity fixed by Bellamy. Moreover, any alteration in Bellamy's reach should be determined by the Supreme Court, not by us. J.K., supra, 407 N.J. Super. at 20.

Affirmed.