STATE OF NEW JERSEY v. JOHN LEE NEAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2793-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN LEE NEAL,

Defendant-Appellant.

________________________________

March 26, 2013

Submitted March 4, 2013 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 82-11-0276.

John Lee Neal, appellant pro se.

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Barbara N. Sappa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John Lee Neal appeals from a January 12, 2012 order of the Law Division denying his motion to withdraw his guilty plea entered twenty-nine years ago. We affirm.

Two indictments were returned against defendant in Monmouth County, each charging him, with respect to each of his two victims, with first-degree aggravated sexual assault and related crimes. In February 1983, he pleaded guilty to the charge of first-degree aggravated sexual assault made in one indictment and, on the other indictment, he pleaded guilty to first-degree sexual assault and to first-degree armed robbery. Following the denial of his motion to retract his guilty pleas, defendant was sentenced for the three crimes in April 1983 to three terms of eighteen years, each subject to nine years of parole ineligibility. The sentences for the two aggravated sexual assaults were consecutive and the sentence for the armed robbery was concurrent, resulting in an aggregate sentence of thirty-six years subject to eighteen years of parole ineligibility. We affirmed the conviction on direct appeal, State v. Neal, A-4785-82T4 (App. Div. May 5, 1983), although we remanded for several technical corrections in the indictments and judgment. We expressly rejected defendant's claim that he was entitled to withdraw his plea and that his sentence was excessive. The Supreme Court denied certification. State v. Neal, 104 N.J. 395 (1986).

Since then, defendant has made numerous applications for relief in both the State and federal courts, beginning in December 1985, when he moved for a reduction of sentence. An order was entered in January 1986 reducing defendant's aggregate parole ineligibility term by three years.

Defendant filed the first of seven applications for post-conviction relief (PCR) in October 1987, which was denied, as was each one thereafter. Following the June 25, 1999 denial of his sixth PCR application, and before defendant maxed out on his sentence, the Attorney General filed a petition seeking defendant's civil commitment pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. On April 23, 2002, the court found defendant to be a sexually violent predator and committed him to the Special Treatment Unit (STU).

On June 24, 2002, defendant filed his seventh PCR application, which primarily challenged the knowing and voluntary character of his guilty pleas on the ground he was not advised, at the time of his pleas, that his criminal convictions could expose him to involuntary civil commitment. Defendant's application was denied on November 12, 2002. Defendant did not file a direct appeal from this decision.1

Instead, on September 20, 2010, defendant filed the instant motion to vacate his guilty plea pursuant to State v. Slater, 198 N.J. 145 (2009). Essentially, defendant argued that his guilty plea should be set aside because: 1) he did not know that his convictions could expose him to involuntary civil commitment; 2) the limited retroactivity rule of State v. Bellamy, 178 N.J. 127 (2003), violated his constitutional guarantee to equal protection; and 3) the terms of the plea agreement violated the basic strictures of "contract law."

Following argument, the motion judge denied defendant's application in a written decision. Analyzing the four Slater factors, the judge found no colorable claim of innocence, Slater, supra, 198 N.J. at 158; the existence of a plea bargain, id. at 160-61; and fundamental unfairness in requiring the State to proceed to trial almost thirty years after commission of these "egregious crimes," id. at 161-62. Thus, the court focused on Slater's second factor the nature and strength of defendant's reasons for withdrawal, id. at 159-60, and found them fatally wanting.

In this regard, the court noted:

Defendant argues that he is entitled to withdraw his guilty plea based on the fact that he was not informed that he could be civilly committed after his prison term. Defendant was not informed of this possibility, quite frankly, because this possibility did not exist at the time of the plea agreements in 1982. N.J.S.A. 2C:7-1 through N.J.S.A. 2C:7-11, better known as Megan's Law, was not signed into law until October 31, 1994. Further, N.J.S.A. 30:4-27, the Sexually Violent Predators Act ("SVPA") was not signed into law until August, 12 1998, sixteen years after defendant's guilty pleas.

Recognizing that Bellamy's rule that a defendant should be informed of the civil commitment consequence before pleading guilty was given only limited retroactivity effect, Bellamy, supra, 178 N.J. at 140, namely applicable to all cases "where the parties have not yet exhausted all avenues of direct review," id. at 141, the court concluded:

Here, defendant has filed numerous motions, all of which were rejected, in addition to a direct appeal which held the claim to be without merit. Therefore the Bellamy rule is not applicable in this case. More recently, the Court in In Re Commitment of J.M.B., 197 N.J. 563, 575 (2009) held that "although it is desirable, and now required, for a person whose convictions may subject him or her to commitment under the SVPA to be informed of such a consequence prior to entering a guilty plea, the lack of notice does not preclude application of the SVPA to those whose convictions preceded the Bellamy holding."

. . . Further, the constitutionality of the SVPA and Bellamy have been challenged and upheld. See In re Civil Commitment of W.X.C., 204 N.J. 179 (2011).

On appeal, defendant raises the following issues:

I. THE STATE FAILED TO PROVE DEFENDANT'S POSITION THAT THE RULE OF THE LAW ANNOUNCED IN STATE V. BELLAMY, 178 N.J. 127 (2003), DEPRIVES DEFENDANT OF HIS RIGHT TO EQUAL PROTECTION AND THE SUBSTANTIVE CONTENT OF ITS PROVISIONS UNDER THE UNITED STATES CONSTITUTION, IS WITHOUT MERIT.

II. THE STATE FAILED TO PROVE THE DEFENDANT'S POSITION THAT, STATE'S DECISION TO INITIATE INVOLUNTARY CIVIL COMMITMENT PROCEEDINGS AGAINST THE DEFENDANT IMPAIRS THE OBLIGATION OF A CONTRACTED PLEA AGREEMENT BETWEEN THE STATE AND DEFENDANT, DEPRIVES DEFENDANT OF REMEDY FOR ENFORCING A CONTRACT, AND FORCES DEFENDANT TO BEAR THE RISK OF MUTUAL LACK OF KNOWLEDGE OF COLLATERAL CONSEQUENCES, IS WITHOUT MERIT.

III. THE STATE FAILED TO PROVE THAT THE OTHER ISSUES RAISED IN DEFENDANT'S BRIEF ARE WITHOUT MERIT, AND THAT THE OPTION TO ENFORCE THE PLEA AGREEMENT BASED ON THE REASONABLE EXPECTATIONS, AS ORIGINALLY ENTERED INTO AND ACCEPTED BY THE COURT, THE STATE AND DEFENDANT AT THE TIME OF ITS EXECUTION, AS AN ALTERNATIVE TO WITHDRAWAL, IS WITHOUT MERIT.

IV. THE STATE FAILED TO POINT OUT FACTUAL CIRCUMSTANCES THAT MUST EXIST BEFORE THEY MAY DEPRIVE DEFENDANT OF HIS RIGHT TO EQUAL PROTECTION OF THE LAWS; THE STATE FAILED TO PROVE THAT THE NONJUDICIAL MECHANISMS USED BY THEM TO DEPRIVE DEFENDANT OF HIS RIGHT TO EQUAL PROTECTION ARE SUFFICIENT.

We deem these issues to be without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and accordingly affirm for the reasons stated in Judge Mullaney's comprehensive written decision of January 12, 2012. We add only the following comment.

Defendant's essential equal protection argument misapprehends the ruling in Bellamy, which held that those defendants who could have been advised of the potential for civil commitment by pleading guilty to certain crimes, and were not so advised, had the right to retract their guilty pleas and proceed to trial. 178 N.J. at 138-39. Among that universe of potential defendants, only those whose direct appeals were not exhausted were held to be within Bellamy's limited retroactive reach. Id. at 140-41. Because defendant could not have been advised of the potential for civil commitment at the time he entered the guilty plea, as the Sexually Violence Predator Act would not be enacted for more than a decade and a half after his conviction, he does not belong to and is not similarly situated to either of the two classes he claims Bellamy created, i.e., those defendants whose direct appeals were not exhausted by the time of Bellamy's decision and those defendants who exhausted all avenues of direct review.

1 Apparently on September 24, 2004, defendant was ordered released from the STU located in Kearny. According to the State, defendant subsequently violated the conditions of his release by committing acts of domestic violence, and was then returned to the STU in 2005.