DOCKET NO. A-3434-09T1
Yvonne Smith Segars, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-10-1220.
Yvonne Smith Segars, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dennis G. Horinka appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
Pursuant to a negotiated agreement with the State, defendant pled guilty on December 16, 1996, to one count of fourth degree criminal sexual contact, N.J.S.A. 2C:14-3(b). In return, the State agreed to dismiss a related charge of fourth degree stalking, N.J.S.A. 2C:12-10, and recommend that defendant be sentenced to a term of eighteen months. Given the nature of the crime, the court ordered that defendant be evaluated by psychologists at the Adult Diagnostic and Treatment Center (ADTC) to determine whether he met the criteria for confinement at this facility pursuant to N.J.S.A. 2C:47-1.
On July 25, 1997, after denying a motion to withdraw his guilty plea, the court sentenced defendant to a term of eighteen months, finding aggravating factors N.J.S.A. 2C:44-1(3), (6) and (9), and no mitigating factors. Defendant did not file a direct appeal challenging the sentence or seeking review of the court's denial of the motion to vacate his guilty plea.
Defendant filed a PCR petition on July 24, 2001, which was subsequently withdrawn by defendant and dismissed by the trial court without prejudice. Defendant filed the PCR petition at issue in this appeal on May 22, 2007. In a certification dated June 26, 2009, filed in support of this petition defendant states:
I am currently confined at the Special Treatment Unit, Kearny, New Jersey, and havebeen confined here since October 24, 2000, when I was temporarily civilly committed. I was permanently civilly committed on March 26, 2001.
I was not advised by my attorney or by the Court that I would be subject to civil commitment at the end of my sentence. It had been mentioned that if I was sentenced to the Adult Diagnostic and Treatment Center (ADTC) that there was a possibility that I could spend more time in prison but I was never advised that I could spend the rest of my life in prison.
. . . .
My initial PCR was filed within time, but assigned counsel urged me to withdraw the petition, arguing that my remedy was with the civil courts. I since learned that vacation of criminal offenses treated as predicate offenses under the S.V.P.A. could also secure my release from custody.
"S.V.P.A." refers to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38.
Defendant's petition came for adjudication before the trial court on September 22, 2009. After considering the arguments of counsel, Judge Robert J. Mega denied the petition without an evidentiary hearing. In his oral opinion delivered from the bench, Judge Mega found defendant's petition barred under Rule 3:22-12 because it was filed more than five years after the date defendant was sentenced by the court. Judge Mega also did not find any grounds to relax the time restrictions, expressly rejecting defendant's claim of "excusable neglect" based on his attorney's advice to withdraw the petition filed on July 24, 2001.
As to the merits of defendant's petition, Judge Mega specifically noted that the rule adopted by the Court in State v. Bellamy, 178 N.J. 127, 143 (2003), stating that prior to accepting a guilty plea to a predicate offense, trial courts must inform defendants of possible consequences of civil commitment under the SVPA, applied only to those cases "pending in which the defendant has not yet exhausted all avenues of direct review." (Emphasis added.) This kind of limited retroactive application is commonly referred to as "pipeline retroactivity." Thus, Judge Mega found that defendant could not assert a Bellamy argument in the context of a PCR petition to challenge the guilty plea he entered in 1996, seven years before the Court decided Bellamy.
Defendant now appeals, raising the following arguments:
THE POST CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING.
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, CONSTITUTIONAL PRINCIPLES OF DUE PROCESS, EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS REQUIRE THAT THE SUPREME COURT'SORDER IN STATE V. BELLAMY, 178 N.J. 127 (2003) BE APPLIED RETROACTIVELY AND THAT DEFENDANT BE ALLOWED TO WITHDRAW HIS ORIGINAL GUILTY PLEA.
We reject these arguments and affirm substantially for the reasons expressed by Judge Mega in his oral opinion of September 22, 2009.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION