STATE OF NEW JERSEY v. JASON DAVIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4370-07T44370-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON DAVIS,

Defendant-Appellant.

________________________________________________________________

 

Submitted June 8, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. 95-12-1569.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Anderson D.

Harkov, Designated Counsel, of counsel

and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Senior Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

This case presents the issues of whether a criminal defendant who pled guilty to four counts of sexual assault prior to the enactment of the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and the Supreme Court's decision in State v. Bellamy, 178 N.J. 127, 138 (2003), is entitled to relief in his petition for post-conviction relief (PCR) more than five years after he was civilly committed and whether the Court's decision in Bellamy applied here. We answer both questions in the negative and conclude that defendant's PCR petition is both time-barred and without merit.
We review the relevant facts and procedural history, which are not in significant dispute.

In August 1995, defendant Jason Davis, twenty-one years of age at the time, committed a series of sexual assaults upon four female victims, all of whom were twelve years of age or younger. On December 22, 1995, Defendant was indicted on fifteen counts of second degree sexual assault, contrary to N.J.S.A. 2C:14-2b; six counts of third degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a; and one count of second degree attempted sexual assault contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2b.

Defendant pled guilty to four counts of sexual assault. The State recommended a maximum term of seven years on all of the counts and dismissal of the remaining counts. After providing a factual basis for the pleas, the court found that defendant "entered [the plea] voluntarily and without any promises or threats being made" and that the pleas were "entered with an understanding by the defendant of the charges pending against him and the consequences of these four counts after a full and adequate discussion with his attorney . . . ."

Within the agreement was a three page document entitled "ADDITIONAL QUESTIONS FOR CERTAIN SEXUAL OFFENSES." At page three of this questionnaire, item six specifically asks:

6. Involuntary Commitment
 
Do you understand that if you are incarcerated as a repetitive and compulsive sex offender you may be subject to involuntary commitment following the expiration of your sentence?

Defendant circled "[YES]" next to this question and he, his attorney and the prosecutor signed the form directly below item six.

The court sentenced defendant on May 30, 1997 to seven years on the four counts in the plea to be served at the Adult Diagnostic and Treatment Center at Avenel, along with appropriate statutory fines and penalties. On September 18, 1997, defendant filed a notice of appeal challenging the excessiveness of his sentence and on June 8, 1998, we affirmed the seven-year term.

The Attorney General's Office filed a petition on November 1, 2001 for the civil commitment of defendant pursuant to the SVPA. Shortly thereafter, defendant was transferred to the Special Treatment Unit Annex in Avenel and civilly committed pursuant to the SVPA.

Defendant filed a petition for PCR on February 9, 2007 and was assigned counsel from the Office of the Public Defender. On his PCR form, defendant argued that his attorney "failed to inform him of the future potential possibility of a retroactive consequence in being subjected to commitment under the N.J. Sexually Violent Predator's [sic] Act at the completion of his term of incarceration."

Following argument on the PCR, in a written opinion, Judge Roma denied relief and said:

SVPA

 
Defendant contends that he should be allowed to retract his guilty plea because he made an unknowing and involuntary plea due to not being informed of the possible civil commitment under The Sexual Violent Predator Act ("SVPA") as required under State v. Bellamy, 178 N.J. 127 (2003). In Bellamy, the Court ruled that a defendant who is subject to SVPA must be made aware of this fact at the time of the guilty plea as a matter of "fundamental fairness." Id. at 139. However, the court limited this rule to cases initiated after the Bellamy ruling and those under direct review at the time of the ruling. Id. at 141-[4]3. Clearly, defendant does not fall into either of these classes as his conviction took place six years prior to the decision in Bellamy. Thus, defendant's argument that Bellamy applies fails. It is also important to note that defendant was aware of the possibility of civil commitment as he answered yes on the supplemental plea form to the question, "Do you understand that if you are incarcerated as a repetitive and compulsive sexual offender, you may be subject to involuntary commitment following the expiration of your sentence?"

R. 3:22-12

Under R. 3:22-12, no other petition for post-conviction relief shall be filed more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect. Under R[ule] 1:1[]-2, strict enforcement of this rule may be relaxed for "exceptional circumstances," where strict enforcement would amount to substantial "injustice.["] In the instant matter, defendant waited 10 years after his judgment of conviction to file a petition for post-conviction relief. Defendant offered no valid reason as to why his delay in filing a petition was due to excusable neglect. Defendant instead argues that since he had no reason to file a petition until November 1, 2001 the date the Attorney General began civil commitment proceedings against him he is excused from filing a timely petition. Even if we accept defendant's assertion that he could not file until November 2001, he still had over five years to file a petition. In conclusion, defendant['s] petition is out of time and barred by R[ule] 3:22-12. In finding defendant's petition time barred, it is unnecessary to analyze the procedural bars in R[ule] 3:22-4 and R[ule] 3:22-5.

Evidentiary Hearing

"Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitioners, Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief[]" Id. as articulated in Strickland[ v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)].

Since defendant['s] petition for PCR is barred under R[ule] 3:22-12, defendant's request for an evidentiary hearing is denied.

Defendant appeals and raises the following issues:

POINT ONE

THE TIME BAR OF R. 3:22-12 IS INAPPLICABLE TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF

A. Defendant's petition challenges an illegal sentence

B. Even if R. 3:22-12 was applicable defendant established excusable neglect.

POINT TWO

THE FAILURE TO APPLY BELLAMY'S NOTICE REQUIREMENT TO DEFENDANT VIOLATED DEFENDANT'S RIGHT TO TRIAL BY JURY BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO HAVE A JURY DECIDE IF HE WAS A SEXUALLY VIOLENT PREDATOR (NOT RAISED BELOW)

POINT THREE

THE PRINCIPAL HOLDING OF STATE v. BELLAMY SHOULD BE APPLIED TO DEFENDANTS WHO PLED GUILTY BEFORE THE SVPA WAS ENACTED

We address defendant's arguments seriatim.

I.

Defendant argues that the time bar under Rule 3:22-12 is "inapplicable" because first, "[d]efendant's petition challenges an illegal sentence" and second, that "[e]ven if R[ule] 3:22-12 was applicable[,] defendant established excusable neglect."

Under Rule 3:22-12(a):

General Time Limitations. A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentences sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

"The five-year period commences from the time of the conviction or the time of the sentencing, whichever the defendant is challenging." State v. Goodwin, 173 N.J. 583, 594 (2002) (citing State v. Afanador, 151 N.J. 41, 52 (1997)). Here, the sentencing judge sentenced defendant on May 30, 1997.

Defendant first attempts to address the time bar issue by arguing that he is challenging an illegal sentence. However, "[u]nder our case law, the 'illegal sentence' standard has been applied to only two types of sentences sentences that exceed the penalty authorized by statute for the specific offense and sentences not imposed in accordance with the law." State v. Marshall, 173 N.J. 343, 354 n.2 (2002) (citing State v. Murray, 162 N.J. 240, 246-47 (2000)). Defendant argues that "he received a sentence unauthorized by law at the time he entered his guilty plea" because he pled guilty to "a maximum prison term of seven years" in 1997. When the later enacted SVPA was applied to him, his sentence was "modified" and became "theoretically without end." This argument is without merit. The sentence here was neither beyond the statutory maximum nor otherwise improper. His civil commitment as the SVPA does not change the terms of the original sentence. We reject defendant's argument.

Defendant urges that he has established excusable neglect under Rule 3:22-12 because "[t]wo years after he was sentenced the SVPA went into effect and over two years passed before the Office of the Attorney General sought to apply the SVPA to defendant." Defendant states that he "could not predict the future and guess that the SVPA would be enacted two years after he was sentenced" and "he could not anticipate [that] the Office of the Attorney General would seek to have him committed based on a law that did not exist when defendant entered his plea." Defendant further asserts that because he was not committed until November 2001, that when he filed his "Public Defender Application" on January 29, 2007, and his PCR on February 9, 2007, his petition was "[a]t worst . . . less than three months out of time."

Other than a PCR petition to correct an illegal sentence, "[n]o other petition shall be filed . . . more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." State v. Milne, 178 N.J. 486, 491 (2004) (quoting R. 3:22-12). As we have stated earlier, there are no sustainable grounds for defendant to allege that he is serving an illegal sentence. He must then establish "excusable neglect" in his late filing in order to prevent his petition from being time barred under Rule 3:22-12. See State v. Norman, 405 N.J. Super. 149, 158-59 (App. Div. 2009) (stating that when the defendant was unable to "establish that the court imposed an illegal sentence" that in order to "overcome the procedural bar in R. 3:22-12, defendant must show that the delay in filing the PCR petition was attributable to excusable neglect").

We recognize that "'[t]he five-year time limit is not absolute.'" State v. DiFrisco, 187 N.J. 156, 166 (2006) (quoting Milne, supra, 178 N.J. at 492). We "'may relax the time bar if the defendant alleges facts demonstrating that the delay was due to the defendant's excusable neglect or if the 'interests of justice' demand it.'" Milne, supra, 178 N.J. at 492 (quoting Goodwin, supra, 173 N.J. at 594). "The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." Norman, supra, 405 N.J. Super. at 159. In analyzing the claim of excusable neglect, we must "'consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits.'" Milne, supra, 178 N.J. at 492 (quoting Afanador, supra, 151 N.J. at 52). However, "[a]bsent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid. (quoting Afanador, supra, 151 N.J. at 52).

We reject defendant's argument that November 4, 2001, be considered the operative date under the rule. When defendant signed his plea agreement on February 10, 1997, acknowledging that he "may be subject to involuntary commitment following the expiration of [his] sentence[,]" defendant had notice that he could be civilly committed following the completion of his sentence. Furthermore, even if defendant had an issue with the Office of the Attorney General filing for his civil commitment on November 1, 2001, he still had seven months left to file a PCR petition prior to the expiration of the five-year period following his sentence.

Further, even if we were to accept November 14, 2001, as the date to begin tolling the five-year clock, defendant concedes that his PCR petition would still fall outside of that five-year period.

Defendant's reliance upon State v. Bringhurst, 401 N.J. Super. 421 (App. Div. 2008), is misplaced. In Bringhurst, the defendant pled guilty to driving while intoxicated (DWI) in 1996 without the assistance of counsel. Id. at 424. Defendant then pled guilty a second time to a second DWI charge while represented by counsel but was sentenced only as a first time offender under the DWI statute because he did not have counsel present during his first plea. Ibid. The defendant was then arrested for a third DWI in 2006. Ibid. The defendant subsequently filed an application for PCR under State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990), asserting that during the 1996 DWI guilty plea "he had no independent knowledge about his right to counsel and never formally waived his right to an attorney." Id. at 425. The issue in Bringhurst was whether the defendant could file his PCR petition on the 1996 guilty plea pursuant to Laurick outside of the five-year period. Id. at 423. We ultimately held:

Applying these factors to defendant's PCR petition we must conclude that the five-year time limit contained in Rule 3:22-12(a) should not automatically require dismissal of the application. The fact that a prior DWI conviction may have been uncounseled would, in and of itself, be of no moment unless and until there was a subsequent DWI conviction. By its very nature, a Laurick challenge simply cannot be raised until a second or subsequent conviction occurs because there is otherwise no basis for "[r]elief from an [e]nhanced [c]ustodial term [b]ased on a [p]rior [c]onviction." R. 7:10-2(g).

[Bringhurst, supra, 401 N.J. Super. at 432-33 (emphasis added).]

The distinction between Bringhurst and the case at bar is that a Laurick PCR petition seeks to "[o]btain [r]elief from an [e]nhanced [c]ustodial [t]erm [b]ased on a [p]rior [c]onviction," R. 7:10-2(g), whereas defendant here has been civilly committed. We have stated that civil commitment under the SVPA "is civil and not penal in nature." State v. J.K., 407 N.J. Super. 15, 19 (App. Div. 2009) (citing In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004)). See also Bellamy, supra, 178 N.J. at 138 (holding that "civil commitment under the [SVPA] is a collateral consequence of [a] defendant's plea"). The procedural safeguard in R. 7:10-2(g), as discussed in Bringhurst, is to prevent an "[e]nhanced [c]ustodial [t]erm" of imprisonment, specifically in a DWI case where there is a longer term of imprisonment for third time DWI offender versus a second time DWI offender. Here, defendant's penal custodial term was not affected by his civil commitment.

In sum, we recognize that Rule 3:22-12 "strongly encourages those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it is too late for a court to render justice." State v. Mitchell, 126 N.J. 565, 576 (1992). Here, defendant did not file his PCR petition until nearly ten years after he was sentenced. Defendant did not file his PCR petition until over five years after he was moved to the Special Treatment Unit. Defendant has failed to show that the delayed petition was as a result of excusable neglect.

II.

Defendant next argues for the first time on appeal that "[h]e was not told he could be confined for life and he was not told that if he chose to go to trial and was found guilty, that conviction could be used to label him a Sexually Violent Predator." More specifically, defendant claims that the lack of notice that "[t]he failure to apply [the Bellamy] notice requirement to defendant violated defendant's right to trial by jury because he never knowingly waived his right to have a jury decide if he was a sexually violent predator[.]"

We find this argument to be without merit.

The Supreme Court found in Bellamy:

when 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.
 
[Bellamy, supra, 178 N.J. at 139 (citing R. 3:9-2).]

The Court further found that in the event a criminal defendant is not informed of the consequences of the SVPA before the trial court accepts the defendant's plea, then "the appropriate remedy is to remand to permit defendant to move to withdraw his plea." Id. at 140. Then, "[i]f the trial court is satisfied that defendant did not understand the consequences of his plea, it shall permit defendant to withdraw his plea 'in the interest of justice to correct a manifest injustice,' R. 3:21-1, and shall reinstate the charges." Ibid.

Defendant argues, citing a litany of United States and New Jersey Supreme Court decisions including Apprendi, Blakely and Natale, that because he did not have the notice described in Bellamy, he "never knowingly waived his right to have a jury decide his guilt or innocence of the offense that resulted in his classification as a sexually violent predator." Defendant's argument, however, fails for three reasons. First, as previously noted, a civil commitment is deemed to be a collateral consequence of the plea agreement and it is not penal in nature. See J.K., supra, 407 N.J. Super. at 19 (citing J.H.M., supra, 367 N.J. Super. at 608). See also Bellamy, supra, 178 N.J. at 138.

Second, despite defendant's contention that Bellamy should apply to him, defendant was well aware that he could be involuntarily committed following the end of his term in prison. As the PCR judge noted:

It is also important to note that defendant was aware of the possibility of civil commitment as he answered yes on the supplemental plea form to the question, "Do you understand that if you are incarcerated as a repetitive and compulsive sexual offender, you may be subject to involuntary commitment following the expiration of your sentence?"

And third, the holding in Bellamy was given only pipeline retroactivity. As we have recently recited in a similar case also seeking an extension of Bellamy's holding:

In determining that the Bellamy rule should be given only pipeline retroactivity, the Court stated:

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.

[J.K., supra, 407 N.J. Super. at 19 (quoting Bellamy, supra, 178 N.J. at 142-43).]

As Judge Roma correctly noted, the Supreme Court "limited this rule to cases initiated after the Bellamy ruling and those under direct review at the time of the ruling . . . [c]learly, defendant does not fall into either of these classes as his conviction took place six years prior to the decision in Bellamy." We agree and find no error in the denial of defendant's PCR petition.

III.

Lastly, defendant argues that "[t]he principal holding of State v. Bellamy should be applied to defendants who pled guilty before the SVPA was enacted." This argument is without merit. As we stated in a case regarding this same issue, "on a more fundamental level, it is plain that as an intermediate appellate court, we lack authority to modify Bellamy's pipeline retroactivity holding." J.K., supra, 407 N.J. Super. at 20-21 (citing State v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976)). In this case, defendant asks us rewrite the Supreme Court's opinion in Bellamy to extend the Court's holding to apply to him and other similarly situated defendants. We are unable to do this as "[w]e are indeed 'bound to comply with the law established by the Supreme Court.'" Ibid. (citing Hill, supra, 139 N.J. Super. at 551). Furthermore again, "[w]e perceive no constitutional or other infirmity in Bellamy's bright line test of pipeline retroactivity." Ibid.

Affirmed.

 

The exact dates of defendant's transfer and civil commitment are unclear from the record present before this court.

In Laurick, the Supreme Court held:

an uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty. In the context of repeat DWI offenses, this means that the enhanced administrative penalties and fines may constitutionally be imposed but that in the case of repeat DWI convictions based on uncounseled prior convictions, the actual period of incarceration imposed may not exceed that for any counseled DWI convictions. For example, a third offender with one prior uncounseled conviction could not be sentenced to more than ninety days' imprisonment.

[Laurick, supra, 120 N.J. at 16.]

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

State v. Natale, 184 N.J. 458 (2005).

(continued)

(continued)

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A-4370-07T4

August 31, 2009