IN THE MATTER OF THE CIVIL COMMITMENT OF R.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE

CIVIL COMMITMENT OF R.S.,

SVP-450-07.

_________________________________________

August 7, 2014

Submitted September 25, 2013 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No.

SVP-450-07.

R.S., appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Amy Beth Cohn, Deputy Attorney General, on the brief).

PER CURIAM

R.S. is civilly committed to the Special Treatment Unit (STU), the secure custodial facility designated for the treatment of persons in need of commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appeals, on leave granted, from the denial of his motion to vacate his commitment following the withdrawal of his guilty plea to the crime which served as the "predicate" offense for his commitment to the STU. R.S. argues that he is entitled to be released because his conviction of that offense no longer exists. Because we conclude that R.S. has other adjudications and convictions that qualify as sexually violent offenses under the SVPA, we affirm the trial court's order continuing his commitment pending a review hearing.

We summarized R.S.'s sexually violent offense history in our opinion affirming the order requiring his 2007 involuntary commitment to the STU. As we explain in this opinion, R.S.'s conviction for the "predicate" offense described here has since been vacated.

The predicate sexually violent offense for which thirty-seven-year-old R.S. is currently committed to the STU occurred in 2001 and involved a fourteen-year-old

girl, K.J. R.S. admitted having sexual intercourse with her, performing oral sex on her, and having her fellate him. R.S. pled guilty to child endangerment, N.J.S.A. 2C:24-4, and was sentenced to a five-year term, which was served at the Adult Diagnostic and Treatment Center (ADTC), having been evaluated a repetitive and compulsive sex offender pursuant to the Sex Offender Act, N.J.S.A. 2C:7-1 to -11. During his Avenel evaluation, R.S. admitted having sexual problems that required treatment. He explained that "it keeps happening and happening and I want it to stop happening."

R.S.'s prior sexually violent offenses date back to 1985, when as a fourteen-year-old, he was adjudicated delinquent for exposing his genitals to a four-year-old, whom he also asked to "suck" his penis. He was given probation and ordered to submit to a psychological evaluation. Two years later, in 1987, he was adjudicated delinquent for an offense, which if committed by an adult, would have constituted aggravated sexual assault. This incident involved a nine-year-old mentally impaired boy who said he was sodomized by R.S. In fact, R.S. admitted the offense, and further, that he forced his victim to perform oral sex on him on multiple occasions. As a result of this adjudication, R.S. was sentenced to two years probation on a suspended sentence with the condition that he complete the Pinelands Residential Program. Despite having received treatment at the Pinelands facility,1in 1992, R.S. was convicted of child endangerment involving sexually offending an eleven-year-old female on multiple occasions and whom R.S. admitted having penetrated. For this offense, R.S. was sentenced to a five-year probationary term, 365 days in county jail, and ordered to continue counseling.

[In re Civil Commitment of R.S., No. A-4609-06, (App. Div. Dec. 12, 2008) (slip op. at 1-3) (footnote in original), certif. denied, 198 N.J. 317 (2009).]

We also summarized the findings of the two experts who testified at the commitment hearing for the State, Natalie Barone, Psy.D and Luis Zeiguer, M.D., a psychiatrist.

Based on her interview and psychological evaluation of R.S., Barone concluded that R.S. is a life-long sex offender with a longstanding sexual pathology that is a part of his sexual orientation. Dr. Barone diagnosed R.S. with pedophilia, (sexually attracted to females, non-exclusive), paraphilia (NOS), hebephilia, alcohol abuse in institutional remission, history of cannabis abuse, rule-out exhibitionism, and antisocial personality disorder. According to Dr. Barone, R.S.'s score on the Static-99 indicates he is at high-risk for sexual recidivism. In addition to the actuarials, Dr. Barone identified other high-risk factors, including the number of R.S.'s sex offenses, his non-sexual violence,2 the length of his offending behavior, his compulsivity, his inability to respond to community supervision, and his diverse victim pool.

Dr. Barone also found that R.S. minimizes, justifies or flat-out denies his sex offending behaviors, and does not believe he needs sex offender treatment. Previous treatment has apparently not reduced his high-risk to sexually reoffend, as according to his termination report at the ADTC, R.S. was resistant to treatment for most of his three-year confinement. Dr. Barone noted that R.S. had failed several modules, including Relapse Prevention -1 and -2, which are crucial components of sex offender treatment; became angry in groups; and made repeated attempts to drop out of the Therapeutic Community before he was eventually removed.

Dr. Zeiguer essentially agreed with Barone's diagnoses. He noted that R.S.'s pedophilia was early onset and that evidence of a conduct disorder surfaced before the age of fifteen. Characteristics of R.S.'s antisocial personality include failure to conform, deceit, manipulation, impulsivity, aggression, and a reckless disregard for the safety of others. According to Dr. Zeiguer, the early onset of these conditions and R.S.'s failure to respond to treatment lead to a poor prognosis, and increased the severity of the risk that R.S. will sexually offend in the future. R.S.'s risk is "very, very high" because he views himself as a victim and takes no responsibility for his actions.

[R.S., supra, slip op. at 3-5.]

The testimony of the State's experts was unopposed, and Judge Perretti found by clear and convincing evidence that R.S. qualified as a sexually violent predator under the SVPA. We affirmed that finding, and the Supreme Court denied certification.3

Following his commitment to the STU, R.S. filed a petition for post-conviction relief (PCR) from his 2002 conviction on the ground that he had not been advised before pleading guilty that he could be civilly committed for an indefinite period as long as his life. The trial court denied the petition finding that R.S. was not entitled to relief under State v. Bellamy, 178 N.J. 127 (2003). We reversed, finding that R.S.'s appeal of his sentence, which was pending when Bellamy was issued, brought his case within the scope of the pipeline retroactivity Bellamy was given. State v. R.S., No. A-0161-09 (App. Div. July 16, 2012). Following our remand, R.S. withdrew his guilty plea and the case is awaiting trial.

R.S. argued in the trial court that he should be released from the STU, or a reevaluation should be conducted to determine whether he meets the standards for commitment without consideration of his conviction for the predicate offense. Although not opposing a reevaluation, the State countered that the term "predicate offense" was without meaning in the SVPA and the State used the phrase only to delineate "chronology" of offenses. Although maintaining that its experts could rely on the offense because R.S. admitted it in treatment, the State contended that R.S. qualified as a sexually violent predator even without its consideration, and thus his release was not warranted.

The judge denied the motion for release but granted the request for a review hearing. He also determined to allow R.S. an opportunity to decide whether he wished to be interviewed in advance of the hearing, given the potential repercussions such an interview could have for his trial. The judge subsequently adjourned the scheduled review hearing at R.S.'s request.

On appeal, R.S. argues that his vacated conviction cannot serve as the "predicate offense" of the State's petition under the SVPA, that because he has been admitted to bail for that offense he should not be held at the STU, and that the appropriate remedy is his release in accordance with the terms of his bail.4 The State contends R.S. should not be released but that the matter should proceed to a review hearing to determine whether he continues to meet the requirements for continued commitment under the SVPA.

The issue before us is largely procedural as R.S. acknowledges that his other convictions provide a basis for his continued involuntary civil commitment, and the State acknowledges that the reversal of the conviction which served as its predicate offense requires reevaluation of R.S.'s status under the SVPA. Specifically, R.S. concedes, as he must, that leaving aside his 2002 conviction for endangering the welfare of a child,5 which has been vacated, he has three other adjudications or convictions that qualify as sexually violent offenses under N.J.S.A. 30:4-27.26,6 two as a juvenile and one as an adult. He was adjudicated delinquent in 1985 for exposing himself to a four-year-old boy, and in 1987 for an offense, which if committed by an adult, would have constituted aggravated sexual assault on a nine-year-old boy who was mentally impaired. In 1992, R.S. was convicted of child endangerment for sexually offending an eleven-year-old girl.

Although R.S. asserts that "[t]he [S]tate did not move to commit [him] under any of his prior convictions," all of those offenses were included in the State's petition and in the clinical certificates of the two psychiatrists the State presented in support of R.S.'s involuntary civil commitment. See N.J.S.A. 30:4-27.28c. We ascribe no special meaning to the term "predicate offense;" it is not defined or used in the statute. A review of our own cases reveals that we often employ the term synonymously with index offense to refer to those crimes which qualify as sexually violent offenses under N.J.S.A. 30:4-27.26a or b. See, e.g., In re Commitment of P.Z.H., 377 N.J. Super. 458, 463 (App. Div. 2005) (explaining that the statutory definitions of "sexually violent predator" and "sexually violent offense," when read together "authorize the commitment of any person who has committed a sexually violent offense, without regard to when the offense was committed or whether the person is currently incarcerated for that offense.").

As we explained in P.Z.H.,

[r]egardless of the date of the last predicate act, the constitutionally mandated touchstone of the Act is proof by clear and convincing evidence that the person currently suffers from a mental condition that makes him or her a sexually violent predator and currently presents a high likelihood of committing sexually violent acts. . . . While the remoteness of the last predicate act may be relevant to that inquiry, it also may be insignificant.

[Id. at 465-66.]

Accordingly, we agree that R.S. is entitled to a reevaluation to determine whether his continued commitment is warranted under the SVPA in light of the reversal of his most recent conviction. We disagree, however, that the petition should be dismissed and the Attorney General forced to file a new petition to secure R.S.'s temporary commitment pending that reevaluation. R.S. has been convicted, or adjudicated delinquent, of other crimes that qualify as sexually violent offenses under the SVPA, beyond the conviction we reversed, which crimes were also made part of the Attorney General's original petition. Under those circumstances, we see no basis for the SVP judge to have dismissed that petition and ordered R.S.'s release from the STU solely because his conviction for the predicate offense was reversed.

We reject R.S.'s argument that because he has been admitted to bail on the 2001 charges, he should not be held at the STU. Once the criminal judge entered the order vacating R.S.'s plea, she was required to consider bail. See State v. Williams, 30 N.J. 105, 124-25 (1959). Because R.S. was committed to the STU, bail was set and he was remanded there. The criminal judge was without authority to consider R.S.'s continued commitment, which was ordered in this separate civil proceeding.

In order to challenge his continued commitment to the STU, R.S. was required to act as he did, that is, to make a motion in the commitment proceeding before the SVP judge. R.S. cites no authority, and we are aware of none, that would prohibit his continued commitment to the STU while he awaits trial on new or reinstated charges, so long as he continues to qualify as a sexually violent predator under the SVPA.

In his reply brief, R.S. argues that the State's experts are not only prohibited from relying on his vacated conviction but may also not consider reports or statements, including his own statements, that "grew out of a conviction that was dismissed by this court." We do not consider this argument as it is not properly before us having only been raised in defendant's reply brief. See Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001). Further, because the review hearing has been adjourned at R.S.'s request, we are not aware of whether the State's experts have submitted updated reports. In any event, we are confident that any such issues can and should be addressed in the first instance to the judge presiding over the review hearing.

Affirmed.

1 A psychological evaluation dated May 1, 1990 and conducted at Pinelands described R.S. as exhibiting sexual pre-occupations, aggression, depression, anger and hostility. Apparently, R.S. did not complete the Pinelands program.

2 R.S.'s non-sex offenses include: assault (1981), starting fires (1981), theft (1987), unregistered motor vehicle offenses (1995), hunting violations (1999), criminal mischief (2002), and harassment charges (2002).

3 R.S.'s commitment was continued following review hearings in 2009 and 2010.

4 R.S. argues in his reply brief that the State should be precluded from further participation in this appeal, or its brief should be suppressed, because it filed its responsive brief several days late. There appearing no prejudice to R.S. by the late filing, we decline to do either. We note that our acceptance of R.S.'s appeal as if filed within time may have resulted in some confusion as to the date on which the State's response brief was due.

5 Although not specifically enumerated as a sexually violent offense in N.J.S.A. 30:4-27.26a, endangering the welfare of a child is considered such when it involves conduct similar to sexual assault, even in the absence of a specific finding that the offense was sexually violent under N.J.S.A. 30:4-27.26b.

See In re Civil Commitment of J.M.B., 197 N.J. 563, 575-77 (upholding this court's holding in In re Civil Commitment of J.P., 393 N.J. Super. 7, 16-18 (App. Div. 2007)), cert. denied, 558 U.S. 999, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009), that endangering the welfare of a child was a sexually violent offense in such circumstances.

6 Sexually violent offense is defined in N.J.S.A. 30:4-27.26 as meaning:

(a) aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to subparagraph (b) of paragraph (2) of subsection c. of N.J.S. 2C:13-1; criminal sexual contact; felony murder pursuant to paragraph (3) of N.J.S. 2C:11-3 if the underlying crime is sexual assault; an attempt to commit any of these enumerated offenses; or a criminal offense with substantially the same elements as any offense enumerated above, entered or imposed under the laws of the United States, this State, or another state; or (b) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense.

[Ibid.]