STATE OF NEW JERSEY v. J.Z.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4432-07T44432-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.Z.,

Defendant-Appellant.

__________________________________________________________

 

Argued March 9, 2009 - Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-05-0474.

Alan Dexter Bowman argued the cause for appellant.

James F. Avigliano, Passaic County Prosecutor, argued the cause for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Petitioner J.Z. appeals from an order, dated April 11, 2008, denying his petition for post-conviction relief (PCR). In his appeal, petitioner advances two points for our consideration:

POINT I: THE COURT BELOW WAS REQUIRED [TO] PERMIT APPELLANT TO WITHDRAW HIS PLEA OF GUILTY AS A MATTER OF LAW.

POINT II: THE GUILTY PLEA WAS REQUIRED TO BE VACATED BECAUSE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

We do not discuss those points specifically because we affirm, substantially for the reasons expressed in the succinct, but thorough letter opinion, dated April 11, 2008, issued by Judge Philip H. Mizzone, Jr. We add only these brief comments.

J.Z. was indicted on May 1, 2000, and charged with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count one); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) and N.J.S.A. 2C:14-2(c)(1) (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count three). On September 26, 2000, he pleaded guilty to count one, second-degree sexual assault, N.J.S.A. 2C:14 2(c)(1), and in exchange, the State agreed to recommend seven years in state prison with eighty-five percent of that term to be served before he would be eligible for parole. Notwithstanding the State's initial recommendation, the court indicated at the plea hearing, without objection from the State and with concurrence from the victim, that it was inclined to sentence J.Z. as a third-degree offender and would, subject to the Adult Diagnostic Treatment Center (ADTC) evaluation, impose a term of four years in prison, with an eighty-five percent parole disqualifier.

Notably, the plea agreement required, however, that J.Z. be evaluated at the ADTC, and the voir dire of J.Z. by defense counsel included the following exchange:

Q. You do understand that you will be going to a treatment center for evaluation; is that right?

A. Yes, sir.

Q. And you understand that according to the evaluation that will determine when and if you would receive parole, that you are not under the normal parole guidelines of the State of New Jersey; do you understand that?

A. Yes.

J.Z. was evaluated on December 20, 2000 and found to meet the criteria for sentencing under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10. More particularly, the evaluation revealed that his conduct was characterized by a pattern of repetitive, compulsive behavior, that he is amenable to sex offender treatment and that he is willing to participate in such treatment.

On February 2, 2001, J.Z. was sentenced in accordance with the agreed terms to four years at ADTC with eighty-five percent parole disqualification. Megan's Law also applied. Counts two and three were dismissed in accordance with the plea agreement.

No direct appeal was taken; however, on or about May 18, 2007, more than six years after the sentencing hearing, J.Z. filed a petition for PCR. In that petition, he alleged that at the time of entry of the guilty plea, his attorney gave him inadequate or erroneous advice concerning the consequences of his being found eligible for confinement at the ADTC. In addition to his oral response during the voir dire at the plea hearing, J.Z. recorded a "yes" answer to question eight on the plea form containing additional questions for sexual offenses committed after December 1, 1998. Nevertheless, petitioner contends he did not understand he could be subject to involuntary civil commitment after he completed his four-year sentence. Question eight on the form asks:

Do you understand that if you are confined at the Adult Diagnostic and Treatment Center, or any other facility for commission of a sexually violent offense, you may upon completion of your total confinement be involuntarily committed to another facility, if the Court finds, after a hearing, that you are a sexually violent predator in need of involuntary civil commitment?

J.Z. contends that his attorney advised him that the civil commitment provisions referenced in question eight on the form did not apply to him. J.Z. further contends he was never advised of the prospect of civil commitment, and that he would not have pled guilty had he understood the true consequences. He claims he first became aware in early 2003, that he was subject to possible involuntary civil commitment.

On October 22, 2003, the State did, in fact, petition for J.Z.'s involuntary civil commitment under the New Jersey Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. In doing so, the State relied, in part, upon the guilty plea to the sexual assault as the predicate offense. On October 30, 2003, an Order for Temporary Civil Commitment of petitioner was entered, and on June 2, 2005, an order of civil commitment was entered, determining that petitioner had been properly characterized as a sexually violent predator. Petitioner appealed, and, on April 18, 2007, the order of civil commitment was affirmed by another panel of this court.

Thereafter, petitioner filed his PCR petition, which was denied by the April 11, 2008 order from which petitioner now appeals. The PCR court reasoned that (1) the petition is time-barred; (2) petitioner took the benefit of the plea deal, which included a sentence one degree lower; and (3) the State would be unfairly prejudiced if the plea were withdrawn at this late date. We agree with the PCR judge's conclusion that the petition was untimely under Rule 3:22-12(a). That rule provides, in pertinent part, that:

No . . . petition shall be filed pursuant to this rule 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.

Petitioner was sentenced on February 2, 2001. He did not file the petition until May 9, 2007, more than five years later. He does not allege excusable neglect. Instead, he argues that the appellate order affirming his involuntary civil commitment triggered the time period under Rule 3:22-12(a) for the filing of his PCR petition. Petitioner is wrong, as a matter of law.

"[P]ost-conviction relief is not a substitute for direct appeal . . . ." State v. Echols, 199 N.J. 344, 357 (2009). J.Z.'s PCR petition is, in effect, a challenge to the sentence. To the extent the petitioner alleges ineffective assistance of counsel, he is required to show that "defense counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland v. Washinigton, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-pronged test formulated in Strickland). It is plain from a review of the facts, viewed favorably to petitioner, that he cannot show that the result would have been different if defense counsel had more clearly informed him of the possible consequence of future civil commitment for an indefinite period.

In State v. Bellamy, 178 N.J. 127, 131 (2003), the Supreme Court held that even though civil commitment under the SVPA is a collateral consequence of a defendant's plea, rather than a direct or penal consequence, "fundamental fairness requires that prior to accepting a plea to a predicate offense, the trial court must inform a defendant of the possible consequences [of future commitment for an indefinite period, up to and including lifetime commitment] under the Act." In that same opinion, however, the Court limited the retroactive applicability of the newly announced rule. Id. at 142. The Bellamy rule applies to that case and to those cases pending on the date of the opinion (December 11, 2003), in which the defendant had not exhausted all avenues of direct review. Id. at 143. See also In re Civil Commitment of J.M.B., SVP-358-04, 197 N.J. 563, 575 (2009) ("[A]lthough . . . a person whose convictions may subject him or her to commitment under the SVPA [must] be informed of such consequence prior to entering a guilty plea, the lack of that notice does not preclude application of the SVPA to those whose convictions preceded the Bellamy holding.").

J.Z.'s petition was properly denied as untimely. Petitioner's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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A-4432-07T4

RECORD IMPOUNDED

November 9, 2009