STATE OF NEW JERSEY v. D.M.B.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5543-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.M.B.,

Defendant-Appellant.

________________________________

January 22, 2013

Submitted October 24, 2012 - Decided

Before Judges Sapp-Peterson and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-02-0493.

D.M.B., appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor,attorney forrespondent (BarbaraA. Rosenkrans,Special DeputyAttorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, pro se, appeals from the trial court order denying his motion to withdraw his negotiated guilty plea to one count of attempted murder and one count of aggravated sexual assault. We affirm.

In a February 2, 1995 indictment, an Essex County grand jury charged defendant with (1) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (Count One); (2) first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); (3) second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Three); (4) first-degree attempted murder, N.J.S.A. 2C:11-3 and 5-1 (Count Four); (5) third-degree terroristic threats, N.J.S.A. 2C:12-3 (Count Five); and (6) third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Six). As a result of a negotiated plea agreement, defendant pled guilty to first- degree attempted murder and first-degree aggravated sexual assault. In exchange, the State agreed to dismiss the remaining charges of the indictment and to recommend a fifteen-year custodial sentence that included a five-year period of parole ineligibility. The plea agreement also included a Supplemental Plea Form for Sexual Offenses that defendant signed. In signing the form, defendant acknowledged that the trial court, as part of the sentence, could sentence him to confinement at the Adult Diagnostic Treatment Center (ADTC) "for a program of specialized treatment" if, following an examination, defendant's conduct was "characterized by a pattern of repetitive and compulsive behavior" and that such a sentence could result in confinement greater than a sentence to state prison.

On August 1, 1995, defendant underwent an evaluation at the ADTC from which a report was issued advising the court that defendant was eligible for confinement at the ADTC. Sentencing occurred on September 22, 1995, during which the court mistakenly advised defendant he was not eligible for sentencing at the ADTC. Neither the State nor defense counsel corrected the court's mistaken belief, despite the court's inquiry to both counsel whether there were "[a]ny additions or corrections." Moreover, defense counsel specifically requested that the court "sentence [defendant] first of all to a state prison term as opposed to the Avenel term. He is doing fine with the medication and all he is on now, I assume that will continue in the state prison setting."

The court sentenced defendant to an aggregate fifteen-year state prison term in accordance with the plea agreement. Nearly nine years later, on July 21, 2004, defendant filed a notice of appeal, which he apparently failed to pursue.

During the course of his state prison term, defendant made six appearances before the State Parole Board between 2000 and 2002, which appearances ultimately resulted in the denial of parole to defendant, despite a 2002 psychological evaluation that concluded, although defendant's recidivist risk scores were in the moderate to medium high range, defendant was "NOT APPROPRIATE FOR REFERRAL" for treatment under the Sexually Violent Predator Act (SVPA), N.J.S.A.30:4-27.24 to -27.38. The following year, authorities presented defendant with an "SVP Consent and Release of Information" form, affording defendant the opportunity to consent to an interview and evaluation regarding possible commitment under the SVPA. Defendant did not consent, opting to instead await court hearings.

In 2003, as defendant was approaching completion of his fifteen-year sentence, the State filed a petition for involuntary commitment to the Special Treatment Unit (STU) on grounds that he was a sexually violent predator who posed a danger if released into the community. The State supported its petition "by submitting to the court two clinical certificates . . . one of which [was] p[re]pared by a psychiatrist."

On March 8, 2004, Judge Serena Perretti, J.S.C., civilly committed defendant to the STU under the SVPA. Defendant filed a motion to vacate his guilty plea on December 17, 2010. Judge Robert H. Gardner issued a letter opinion and order denying defendant's application on March 28, 2011. The present pro se appeal ensued.

A motion to withdraw a guilty plea may be filed at any time, although different standards apply to disposition of the motion, depending upon whether the motion is filed prior to sentencing or post-sentencing. State v. Slater, 198 N.J. 145, 158 (2009). In either context, however, the decision granting or denying such a motion is committed to the sound discretion of the motion judge. State v. Bellamy, 178 N.J. 127, 135 (2003). This discretionary determination requires the court to "weigh the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty. . . ." State v. Johnson, 182 N.J. 232, 237 (2005). Post-sentencing motions to withdraw a guilty plea are subject to the "manifest injustice" standard of Rule 3:21-1. State v. Hayes, 205 N.J. 522, 535 (2011). In such cases, if a defendant wishes to withdraw a guilty plea, the "[c]ourt weighs more heavily the State's interest in finality and applies a more stringent standard." State v. McQuaid, 147 N.J. 464, 487 (1997).

Defendant does not argue that the guilty plea was not entered knowingly and voluntarily, or that he failed to understand the uniqueness of his plea, or that there was an inadequate factual basis. State v. ex rel. T.M., 166 N.J. 319, 327 (2001) (finding that guilty plea not entered voluntarily and knowingly violates due process and is constitutionally defective); State v. Smullen, 118 N.J. 408, 417 (1990) (holding that defendant should be permitted to withdraw his guilty plea if all of its material terms and relevant consequences were not fully understood); State v. McDonald, 211 N.J. 4, 34 (2012) (stating that inadequate factual basis is a sufficient ground for withdrawal of defendant's guilty plea). Rather, defendant argues that his plea agreement with the State constituted an enforceable contract, clear of any ambiguities, and given its contractual nature, a plea agreement contains all elements of the contract and is "governed by the contract law of the State, not by criminal statutes." Accordingly, defendant urges that once a plea agreement has been executed by the parties, "nothing new, regardless of its nature, may be added to the contract[.]" In short, defendant contends that his civil commitment was not part of the plea agreement and, therefore, his subsequent commitment violates the New Jersey Constitution, Article IV, 7, 3 (prohibiting the "passing of any bill of attainder, ex-post facto law, or laws impairing the obligation of contracts, or depriving a party of any remedy for enforcing a contract which existed when the contract was made."); U.S. Const. art. I, 10. We disagree.

Civil commitments pursuant to the SVPA became effective in 1999, four years after defendant was sentenced to his fifteen- year custodial term. The Court, in Bellamy, supra, held that commitment under the SVPA is neither penal nor direct, but a collateral consequence. 178 N.J. at 138. Nonetheless, the Court also held that fundamental fairness requires courts to inform defendants entering into plea agreements of potential civil commitment under the SVPA upon completion of a state prison sentence. Ibid. However, the Court declined to accord full retroactivity to its new rule that defendants be informed of the collateral consequences under the SVPA. Id. at 140. Rather, the court accorded limited retroactivity to those cases pending direct appeal at the time of its decision:

The purpose of the rule announced herein is to ensure that a defendant eligible for commitment under the [SVPA] clearly understands the nature and the consequences of the plea. However, trial courts routinely have not informed defendants of the consequences because those consequences are not direct and penal consequences of the plea. While we do not know the exact number of defendants who pled guilty to a predicate offense without knowing the possible consequences under the Act and were later committed, we recognize that full retroactivity of this decision would have a disruptive effect on the administration of justice. The lack of 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 mandates that the new rule should apply only to cases pending direct review at the time of the rule's announcement. See State v. Czachor, 82 N.J. 392, 409-10.

We conclude that the rule announced in today's decision-that prior to accepting a guilty plea to a predicate offense, trial courts must inform defendants of possible consequences under the Act-shall be applied in this case and those cases pending in which the defendant has not yet exhausted all avenues of direct review.

[Bellamy, supra, 178 N.J. at 141-43.]

Nor does defendant's commitment under the SVPA constitute a bill of attainder or a "law that legislatively determines guilt and inflicts punishment upon an identifiable individual without a provision of the protection of a judicial trial." Poritz, supra, 142 N.J. at 76-7 (citing Selective Serv. Sys. v. Minnesota Pub. Interest Research Grp., 468 U.S. 841, 846-47 (1984)). In determining whether an act is a forbidden bill of attainder, courts apply the same analysis used in determining violations of the ex post facto clause; that is, courts look to the main purpose of the law and determine whether it is punitive or remedial. Because our courts have held that the purpose of the SVPA is remedial, In re Commitment of W.X.C., 204 N.J. 179, 195 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011), and defendant has the option of annually reviewing his commitment, the SVPA cannot be characterized as a bill of attainder.

Additionally, at the time his original sentence was imposed, defendant was merely eligible for commitment at the ADTC. His eligibility did not, however, mandate his commitment there. State v. Howard, 110 N.J. 113, 128 (1988). The court, in its discretion, could have proceeded to sentence defendant to state prison irrespective of the recommendation. Here, defendant, through defense counsel, specifically requested a sentence to state prison, perhaps to avoid confinement beyond the fifteen years. In any event, courts have recognized that "'[i]n a more perfect world, defendant's rehabilitative treatment would have started earlier,' but [have] held that the delay [is] not unconstitutional because there is no right to sex offender treatment during a custodial term." W.X.C., supra, 204 N.J. at 202 (2010) (citing Howard, supra, 110 N.J. at 133). Thus, defendant's current treatment at the STU, while delayed, is not a breach of his plea agreement.

Likewise, we find no merit to defendant's equal protection challenge to his civil commitment. The Equal Protection Clause of the Fourteenth Amendment holds that no State "shall deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV. This clause essentially posits that all persons similarly situated should be treated alike. See City of Cleburne, Texas v. Cleburne Living Cntr., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985).

Limited retroactivity of the Bellamy Court's rule treats defendant differently than other similarly situated individuals who negotiated plea bargains with the State and who are now informed of the possibility of civil commitment. However, to reiterate, commitment under the Act is civil in nature and not only considers past sexually violent behavior for which, by nature of his state prison term, he has already been punished, but also is based upon current mental condition and demonstrated inability to control one's sexually harmful conduct. Bellamy, supra, 178 N.J. at 136. Thus, the judge must address a defendant's "present serious difficulty with control over dangerous sexual behavior." In that regard, based upon the current evaluation and recommendation set forth in the two clinical certificates the State submitted in support of its petition, defendant's civil commitment could also have been accomplished pursuant to N.J.S.A. 30:4-27.28(d), which provides:

The Attorney General, in exercise of the State's authority as parens patriae, may initiate a court proceeding for the involuntary commitment of any person in accordance with the procedures set forth in this section by filing the required submission with the court in the jurisdiction in which the person whose commitment is sought is located.

Thus, defendant's equal protection claim is without merit.

A