STATE OF NEW JERSEY v. SANDY MCDONALD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4944-07T44944-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SANDY MCDONALD,

Defendant-Appellant.

_______________________________

 

Submitted: January 13, 2010 - Decided:

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 96-10-1678.

Yvonne Smith Segars, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Mary E. McAnally, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In May 1997, defendant entered a negotiated guilty plea to second degree sexual assault and to possession of cocaine in exchange for a recommended sentence of ten years in the custody of the Commissioner of the Department of Corrections. On August 22, 1997, defendant was sentenced in accordance with the negotiated recommendation.

Subsequently, in March 2003, defendant was civilly committed under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to .27. On January 18, 2007, over five years after defendant's sentencing, defendant filed a petition for post conviction relief, claiming that the petition was to "correct an illegal sentence." The petition asserted that his attorney "failed to inform him of the future potential possibility of a retroactive consequence in being subjected to commitment under [] New Jersey's S.V.P. Act at the completion of his term of incarceration." The brief by counsel in support of the petition argued that the claim was not time barred, that defendant was provided "ineffective assistance of counsel" and was entitled to an "evidentiary hearing on" the subject, and that the failure to advise him of the potential SVPA commitment "render[ed] his guilty plea unknowing and involuntary, resulting in fundamental unfairness" and in a "denial of equal protection." The petition was denied.

In State v. Bellamy, 178 N.J. 127, 138 (2003), the Supreme Court held that a defendant exposed to the possibility of commitment under the SVPA as a result of a guilty plea must be so advised at the time of the plea. The Court, however, gave the holding only "pipeline" retroactivity. Id. at 141-43. Accordingly, the rule would not apply to this defendant's case. The Court also made clear that its ruling was not mandated by constitutional principles because the commitment was not a direct or penal sequence of the plea. Id. at 137-38.

Defendant now argues:

POINT I: ABSENT NOTICE TO DEFENDANT THAT HIS PLEA TO SEXUAL ASSAULT MIGHT LEAD TO CIVIL COMMITMENT, DEFENDANT DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY, AND DIRECT-APPEAL COUNSEL WAS INEFFECTIVE FOR NOT ADDRESSING THE ISSUE.

POINT II: TRIAL COUNSEL WAS INEFFECTIVE FOR NOT ADVISING DEFENDANT THAT BY PLEADING GUILTY TO SEX[UAL] ASSAULT HE FACED POSSIBLE CIVIL COMMITMENT, AND POST-CONVICTION COUNSEL VIOLATED R. 3:22-6(d) BY DISMISSING THE CLAIM AGAINST TRIAL COUNSEL DESPITE THE FACT THAT DEFENDANT RAISED IT IN HIS PRO SE PETIION FOR POST-CONVICTION RELIEF.

A. R. 3:22-6(d) Prohibited PCR Counsel From Dismissing McDonald's Pro Se Claim Against Trial Counsel.

B. Defendant's Pro Se Claim, That His Plea Was Not Entered Knowingly And Voluntarily Because Trial Counsel Did Not Inform Him of Possible Civil Commitment, Presents a Prima Facie Case That Trial Counsel Provided Ineffective Representation.

POINT III: WHERE THE SUBSTANCE OF DEFENDANT'S CLAIM ON PCR IS THAT HIS GUILTY PLEA IS INVALID BECAUSE HE WAS NOT TOLD IT COULD LEAD TO CIVIL COMMITMENT, HE SHOULD BE PERMITTED TO FILE HIS PCR OUT OF TIME BECAUSE: 1) HE DID NOT LEARN THAT HE FACED COMMITMENT UNTIL AFTER THE DEADLINE FOR APPLYING FOR PCR HAD PASSED; 2) HIS CLAIMS INVOLVE CONSTITUTIONAL VIOLATIONS; AND 3) TRIAL AND DIRECT-APPEAL COUNSEL WERE INEFFECTIVE FOR NOT RAISING THE CLAIMS PREVIOUSLY.

Defendant claims he would have gone to trial if he knew he might be committed for the rest of his life. He further contends that the rule in Bellamy violates his equal protection rights because he has been treated differently than others who were given the warning as part of the plea colloquy. But we know of no principle of law requiring retroactive application of the requirements of a plea colloquy, particularly when the Supreme Court has held we are dealing with a civil commitment which is not a direct or penal consequence of the plea. In any event, only the Supreme Court can reconsider its ruling on retroactivity. State v. J.K., 407 N.J. Super. 15, 20-21 (App. Div.), certif. denied, 200 N.J. 209 (2009). Moreover, counsel cannot be faulted for not advising defendant about the SVPA before it was enacted in 1998, L. 1998, c. 71.

Defendant argues he is entitled to PCR, however, because he was not asked about the possibility of an involuntary civil commitment as the law stood at the time of his plea. At his plea colloquy, defendant was asked if he understood the consequences of an evaluation at, and commitment to, the Adult Diagnostic and Treatment Center and the requirements of Megan's Law and community supervision for life. We cannot conceive that if the Supreme Court did not hold Bellamy retroactive with respect to the SVPA, it would be applied retroactively to a period before the SVPA was enacted. Moreover, if counsel cannot be deemed ineffective for not advising defendant at the time of the plea, before Bellamy, about the consequences of the SVPA, which is more directly triggered by a conviction for a predicate sex offense (and present danger), counsel cannot be deemed ineffective for not doing so previously under pre-SVPA law.

Any other issues raised in the petition, if they are not deemed directly related to the above, are time barred, R. 3:22-12, and were inadequately supported to warrant an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

The denial of the petition for post conviction relief is affirmed substantially for the reasons stated in the written opinion of Judge Francis P. DeStefano dated August 8, 2007.

Affirmed.

 

The State also agreed to downgrade aggravated sexual assault to the second degree charge, dismiss the balance of the nine count indictment and waive an extended term.

We had affirmed the conviction on the Sentence Oral Argument calendar on May 13, 1998.

We have considered the SVPA claims as timely despite the fact defendant waited four years before the commitment to file his PCR, and there is no issue of sentence legality raised.

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2

A-4944-07T4

RECORD IMPOUNDED

February 3, 2010