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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4895-02T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
F.T.,
Defendant-Appellant.
September 26, 2005
Submitted September 13, 2005 - Decided
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Before Judges Skillman and Kimmelman.
On appeal from Superior Court of New Jersey, Law Division, Camden County,
Indictment No. 2495-10-92.
Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer,
Designated Counsel, on the brief).
Vincent P. Sarubbi, Camden County Prosecutor, attorney for respondent (Linda
A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Pursuant to a negotiated plea agreement, defendant pled guilty on January 17, 1995 to charges of
aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(1); sexual assault, in violation of N.J.S.A.
2C:14-2(c)(5); and third degree promoting prostitution, in violation of N.J.S.A. 2C:34-1(b)(3), under one
indictment, and to a charge of tampering with witnesses, in violation of N.J.S.A. 2C:28-5(a), under a second
indictment. Shortly before sentencing, defendant filed a motion to retract his guilty pleas. After an
extensive hearing, the trial court denied defendant's motion. On December 15, 1995, the court sentenced
defendant to an aggregate term of twenty-years imprisonment, with ten years of parole ineligibility, to be
served at the Adult Diagnostic and Treatment Center at Avenel.
On appeal, we affirmed the denial of defendant's motion to withdraw his guilty plea and his sentence in an
unreported opinion. State v. F.T., A-2877-95T1 (App. Div., May 7, 1997). The Supreme Court denied
defendant's petition for certification. 151 N.J. 465 (1997).
Subsequently, defendant filed a petition for post-conviction relief. The primary argument asserted in
defendant's petition was that upon completion of his sentence he could be subject to civil commitment
under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and that retroactive
application of the SVPA to him would be unconstitutional as a violation of the ex post facto prohibitions of
both the United States Constitution, Art. 1, § 10, cl. 1; and the New Jersey Constitution, Art. 4, § 7, par. 3.
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The trial court concluded that defendant's claim of alleged constitutional infirmity of the SVPA was
not a basis for post-conviction relief because defendant was not yet and might never become subject to the
provisions of that statute:
[N]o petition for the civil commitment of [defendant] has been filed under the
SVPA, nor is there any indication of an impending petition. . .
[Defendant] was sentenced on December 15, 1995 to 20 years imprisonment
with 10 years parole ineligibility under I-2495-10-92; and a concurrent 5 year
term under I-1837-08-93, with 2 and 1/2 years parole ineligibility. He will not
become eligible for parole until 2005 at the earliest. He is years away from
serving his maximum sentence, which could run to 2014 or thereabouts. Thus,
unlike W.Z., the SVPA has yet to be applied to [defendant]. To assume it will be
is to engage at this point in speculation, and would require an advisory opinion
whether the SVPA would be barred by the ex post facto law prohibition of the
New Jersey Constitution, if years down the road the State were to file a petition
for civil commitment of defendant.
The court also rejected defendant's claims that he had received ineffective assistance of trial counsel and
that he should be allowed to withdraw his guilty plea because he was unaware of his potential commitment
under the SVPA at the time of the plea.
On appeal from the denial of his petition, defendant presents the following arguments:
I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED
AND THE DEFENDANT'S CONVICTIONS AND SENTENCES IMPOSED
VACATED BECAUSE THE DENIAL OF THE DEFENDANT'S MOTION TO
WITHDRAW HIS GUILT PLEAS AND MOTION TO WITHDRAW HIS GUILTY
PLEAS AND THE IMPOSITION OF A SENTENCE TO BE SERVED AT THE
ADULT DIAGNOSTIC AND TREATMENT CENTER VIOLATES THE EX POST
FACTO CLAUSE OF THE UNITED STATES AND NEW JERSEY STATE
CONSTITUTIONS.
A. THE COURT ABUSED ITS DISCRETION IN APPLYING R. 3:22-5 TO BAR
CONSIDERATION OF ISSUES RAISED IN POST-CONVICTION RELIEF.
B. DEFENDANT'S GROUNDS FOR RELIEF WERE NOT PROCEDURALLY BARRED
BECAUSE A SENTENCE IMPOSED UPON A DEFENDANT WHOSE
CONVICTION WAS THE RESULT OF A FUNDAMENTAL DEPRIVATION OF A
CONSTITUTIONAL RIGHT IS ILLEGAL AND POST-CONVICTION RELIEF IS
COGNIZABLE UNDER RULE 3:22-12.
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II. SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF A
VIOLATION OF HIS CONSTITUTIONAL RIGHTS UNDER THE FEDERAL AND
THE NEW JERSEY CONSTITUTION, THE COURT ERRED IN RULING THAT
IT WOULD BE ISSUING AN "ADVISORY OPINION" TO ADJUDICATE THE
ISSUES RAISED IN POST-CONVICTION RELIEF.
III. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED
AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE DEFENDANT
DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
IV. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED
AND THE DEFENDANT'S CONVICTIONS VACATED BASED ON THE
CUMULATIVE EFFECT OF ALL ISSUES RAISED IN POST-CONVICTION
RELIEF.
We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set
forth in Judge Cook's opinion of January 6, 2003. Defendant's arguments are without sufficient merit to
warrant any additional discussion. R. 2:11-3(e)(2).
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Affirmed.
This archive is a service of Rutgers School of Law - Camden.
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