STATE OF NEW JERSEY v. ALBERT H. BORDEN, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4520-05T44520-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT H. BORDEN, JR.,

Defendant-Appellant.

____________________________________________________________

 

Submitted September 10, 2007 - Decided September 26, 2007

Before Judges Graves and Alvarez.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Accusation

No. 01-01-84-A.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael C. Kazer,

Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County

Prosecutor, attorney for respondent

(Alexis R. Agre, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Albert H. Borden, Jr., appeals from an order denying his petition for post-conviction relief (PCR) entered on January 20, 2006. We affirm.

On January 12, 2001, defendant pled guilty to third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). Pursuant to a negotiated plea, the State agreed to recommend that defendant's sentence would be limited to no more than 364 days in the Burlington County Jail with a concurrent sentence for violating probation.

At the sentencing hearing on April 12, 2001, Judge Almeida rejected the plea agreement, and he advised defendant of his right to withdraw his guilty plea, reinstate his not guilty plea, and proceed to trial. The judge also advised defendant that an evaluation conducted by the Adult Diagnostic and Treatment Center (ADTC) had determined he qualified as a repetitive and compulsive sex offender within the meaning of N.J.S.A. 2C:47-3. Nevertheless, defendant informed the court that he did not want to challenge the ADTC evaluation, and he indicated he wanted to proceed with sentencing. Defendant was sentenced to a four-year prison term to be served at the ADTC in Avenel, with a concurrent eighteen-month sentence for violating probation. Defendant was advised he had forty-five days to file an appeal, but he elected not to do so.

Subsequently, on December 11, 2003, the New Jersey Supreme Court decided State v. Bellamy, 178 N.J. 127 (2003), and on June 10, 2004, defendant filed a petition for PCR. In his petition, defendant indicated that after he served his sentence, he was involuntarily committed under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and he argued his conviction should be vacated because his trial attorney failed to advise him prior to the entry of his guilty plea that the SVPA would apply to him.

Judge Almeida's reasons for denying defendant's PCR petition included the following:

The holding in Bellamy was specifically given limited retroactive effect by our [c]ourt. This category of retroactivity applies only to cases pending direct review at the same [time] . . . the Bellamy decision was handed down. [Defendant] never filed a direct appeal and therefore cannot be said to have a case pending at the time Bellamy was decided.

On this appeal, defendant raises the following issues:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE TRIAL COURT FOR A HEARING TO RELEASE THE DEFENDANT FROM HIS CIVIL COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT.

(A)

TRIAL COUNSEL'S FAILURE TO ADVISE THE DEFENDANT THAT HE WAS SUBJECT TO A CIVIL COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT AT THE TIME HE ENTERED HIS PLEA OF GUILTY CONSTITUTED A STIPULATED PER SE ACT OF INEFFECTIVE ASSISTANCE OF COUNSEL.

(B)

THE COURT ABUSED ITS DISCRETION IN FINDING THAT POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED UNDER STATE V. BELLAMY BECAUSE THE DEFENDANT DID NOT FILE A DIRECT APPEAL.

(C)

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S CIVIL COMMITMENT VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS (NOT RAISED BELOW).

After considering these contentions in light of the record, the applicable law, and the trial court's findings and conclusions, we are convinced defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Almeida in his comprehensive oral decision on January 12, 2006. We add only the following comments.

In Bellamy, the Court stated that a civil commitment under the SVPA is a collateral consequence of a guilty plea. Bellamy, supra, 178 N.J. at 138. Nevertheless, because a guilty plea to a sexual offense may ultimately result in a civil commitment that exceeds the length of a criminal sentence, fundamental fairness requires that defendants be informed of the possible consequences under the SVPA prior to the entry of a guilty plea to a predicate offense. Ibid. However, the Court specifically directed that its decision, which it characterized as "a new rule of law not dictated by existing precedent," id. at 141, should be limited to "those cases pending in which the defendant has not yet exhausted all avenues of direct review." Id. at 143.

In this case, defendant decided not to seek direct review of his conviction or sentence, and his time to file a direct appeal expired in 2001. Accordingly, defendant cannot benefit from the new rule announced in Bellamy, and defendant's trial attorney was not ineffective for failing to comply with an obligation that did not exist when defendant entered his guilty plea.

 
Affirmed.

(continued)

(continued)

5

A-4520-05T4

RECORD IMPOUNDED

September 26, 2007