STATE OF NEW JERSEY v. S.P.R

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4222-07T44222-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.P.R.,

Defendant-Appellant.

_________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Wefing and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment

No. 98-06-0914.

Yvonne Smith Segars, Public Defender, attorney

for appellant (M. Virginia Barta, Assistant

Deputy Public Defender, of counsel and on the

brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In October 1999, defendant entered a negotiated plea of guilty to one count each of sexual assault, a crime of the second degree, N.J.S.A. 2C:14-2c; criminal restraint, a crime of the third degree, N.J.S.A. 2C:13-2; and theft by deception, a crime of the third degree, N.J.S.A. 2C:20-3. The prosecution agreed to recommend concurrent sentences of five years, with that for sexual assault subject to the parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. In addition, the prosecutor agreed to dismiss charges of aggravated sexual assault, a crime of the first degree, N.J.S.A. 2C:14-2a; kidnapping, a crime of the second degree, N.J.S.A. 2C:13-1b; aggravated assault, a crime of the second degree, N.J.S.A. 2C:12-1b(1); and criminal sexual contact, a crime of the fourth degree, N.J.S.A. 2C:14-3b. The plea agreement also provided that defendant's sentence was to run concurrent to a sentence he was then serving for violation of probation in Union County. In July 2000, the trial court sentenced defendant in accordance with the terms of the plea agreement.

When defendant finished the custodial portion of his sentence, the Attorney General filed a petition seeking his commitment as a sexually violent predator. In re Civil Commitment of [S.P.R.], No. SVP-243-02 (Law Div. April 10, 2002). The petition was granted and, rather than being released as he had anticipated, defendant was civilly committed.

In 2006, defendant filed a petition for post-conviction relief. He alleged that his trial attorney had provided ineffective assistance to him because the attorney had not advised him of his potential commitment as a sexually violent predator. He asserted that if he had been advised of that contingency, he would not have entered a plea of guilty but would have proceeded to trial. Counsel was assigned to represent defendant in connection with his petition. After hearing oral argument, the trial court denied the petition and this appeal followed.

Defendant makes the following contentions on appeal.

POINT I DEFENDANT SHOULD BE ALLOWED TO VACATED HIS PLEA BECAUSE HE WAS NOT ADVISED ABOUT THE APPLICABILITY OF THE SEXUALLY VIOLENT PREDATORS ACT TO HIM AND, THUS, IT WAS NOT ENTERED KNOWINGLY AND VOLUNTARILY

POINT II TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ADVISING DEFENDANT THAT BY PLEADING GUILTY HE WAS SUBJECT TO INVOLUNTARY COMMITMENT

Our analysis of these contentions is controlled by the Supreme Court's decision in State v. Bellamy, 178 N.J. 127 (2003). The defendant in that case was charged with second-degree sexual assault and fourth-degree criminal sexual contact and entered a negotiated plea of guilty to the fourth-degree charge in exchange for a recommendation of a sentence of eighteen months and dismissal of the second-degree charge. Id. at 132. Just prior to the completion of his sentence, he was committed as a sexually violent predator. Id. at 133. He appealed his conviction on the fourth-degree charge and argued he should have been permitted to withdraw his guilty plea, contending he was never advised that he faced the possibility of later commitment as a sexually violent predator. Id. at 133. This court affirmed the denial of his motion, ruling that his subsequent commitment was not a direct or penal consequence of his guilty plea and that the trial court accordingly was not obligated as part of the plea colloquy to assure that the defendant was aware of that potential. Id. at 135. The Supreme Court, however, reversed. It declined to rest its analysis on the traditional distinctions drawn between direct, or penal, consequences of a guilty plea and collateral consequences of a guilty plea, noting that commitment is neither penal nor direct, but collateral to a guilty plea. Id. at 138. Rather, it rested its decision on what it termed principles of fundamental fairness.

[W]hen the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence. The failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense under the Act is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea.

[Id. at 139.]

The Court then turned to the question whether its decision should have prospective or retroactive application. It recognized that its decision "announce[d] a new rule of law not dictated by existing precedent and place[d] a new obligation on the courts to inform a defendant of a consequence that is neither direct nor penal relating to his or her plea." Id. at 141. After considering the potential consequences of its holding, the Court determined that it should have limited retroactivity, that is, it would apply to the defendant's case "and those cases pending in which the defendant has not yet exhausted all avenues of direct review." Id. at 143.

Clearly, this defendant does not come within this category. He entered his plea of guilty in October 1999 and was sentenced in July 2000. The Court released its decision in Bellamy in December 2003, more than three years after defendant was sentenced. Defendant had no avenue of direct appeal remaining to him when Bellamy was decided and thus was not entitled to invoke its limited retroactivity.

We do not consider it material that defendant has framed his argument in terms of alleged ineffective assistance of counsel. Counsel could not be deemed to be ineffective within the Strickland/Fritz framework for not forecasting a decision three years in the future. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).

The order under review is affirmed.

 

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A-4222-07T4

RECORD IMPOUNDED

May 25, 2010