                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4514-15T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

M.E.H.,

     Defendant-Appellant.
_____________________________

                   Submitted May 29, 2018 – Decided March 29, 2019

                   Before Judges Accurso, O'Connor and Vernoia.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 96-09-1166.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew P. Slowinski, Designated Counsel,
                   on the brief).

                   Michael A. Monahan, Acting Union County
                   Prosecutor, attorney for respondent (Izabella M.
                   Wozniak, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).
      The opinion of the court was delivered by

O'Connor, J.A.D.

      Defendant appeals from an April 15, 2016 order denying his petition for

post-conviction relief (PCR). We affirm.

                                        I

      In April 1997, defendant pled guilty to one count of second-degree

sexual assault, N.J.S.A. 2C:14-2(c)(1). In September 1997, he was sentenced

to a ten-year term of imprisonment with a four-year period of parole

ineligibility. Defendant filed a direct appeal and we affirmed. See State v.

M.E.H., No. A-7288-97 (App. Div. March 1, 2000). The Supreme Court

denied his petition for certification. State v. M.E.H., 165 N.J. 491 (2000).

      In May 2006, defendant was civilly committed to the Special Treatment

Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A.

30:4-27.24 to -27.38. Defendant appealed and we affirmed that commitment.

See In re Civil Commitment of M.E.H., No. A-5923-05 (App. Div. Feb. 27,

2008). We found substantial credible evidence to support the trial court's

finding M.E.H. suffered from paraphilia not otherwise specified (NOS), and

was highly dangerous and likely to re-offend if released. The Supreme Court




                                                                         A-4514-15T4
                                        2
denied his petition for certification. In re Civil Commitment of M.E.H., 196

N.J. 461 (2008).

      In the interim, on August 20, 2008, defendant filed his first petition for

PCR, claiming plea counsel had been ineffective because he advised defendant

to accept the plea. Defendant alleged counsel overlooked the fact that there

was no medical proof defendant had penetrated the victim, an element of the

charge to which he pled guilty. See N.J.S.A. 2C:14-2(c)(1). Following an

evidentiary hearing, the PCR court denied the relief defendant sought in his

petition, entering an order on April 17, 2009.

      Defendant appealed from the latter order. On appeal, defendant argued

plea counsel had been ineffective, but he also maintained the prosecutor had

failed to adhere to his duty to disclose exculpatory evidence, and that

"fundamental fairness doctrines" mandated he be permitted to retract his guilty

plea. We rejected defendant's contentions and affirmed the PCR court. See

State v. M.E.H, No. A-4690-08 (App. Div. July 25, 2011). The Supreme Court

denied defendant's petition for certification. State v. M.E.H., 209 N.J. 98

(2012).

      In July 2011, the trial court conducted a review hearing to determine

whether M.E.H.'s civil commitment should continue. After evaluating the


                                                                          A-4514-15T4
                                        3
evidence, the court found defendant had a personality disorder and, as revealed

during the previous commitment hearing, paraphilia NOS. Because defendant

suffered from a mental abnormality or personality disorder, required treatment,

had "no command over his sexual offense cycle," and was highly likely to

engage in further acts of sexual violence, the court ordered defendant's

continued commitment to the STU. Defendant appealed and we affirmed. In

re Civil Commitment of M.E.H., No. A-5872-10 (App. Div. Feb. 11, 2014).

The Supreme Court denied his petition for certification. State v. M.E.H., 219

N.J. 627 (2014).

      On March 26, 2015, defendant filed his second petition for PCR, in

which he alleged there had been no valid legal basis to detain and commit him

after his sentence for sexual assault terminated in 2007. The record does not

reveal whether PCR counsel made additional arguments in his brief. On April

15, 2016, the PCR court entered an order denying defendant's application for

PCR on the grounds his second petition was time-barred, and the contentions

defendant asserted in his second petition could have been raised in the first.

Defendant appeals from the April 15, 2016 order.




                                                                           A-4514-15T4
                                        4
                                      II

     Defendant presents the following issues for our consideration in his

appeal:

           POINT I: THE PCR COURT'S DECISION SHOULD
           BE REVERSED AS DEFENDANT'S CONTINUED
           INCARCERATION UNDER THE SEXUALLY
           VIOLENT PREDATOR ACT CONSTITUTES THE
           IMPOSITION OF AN ILLEGAL SENTENCE.

           (A) DEFENDANT IS ENTITLED TO RELIEF
           UNDER R. 3:22-2(c).

           (B) DEFENDANT'S PETITION FOR PCR IS NOT
           TIME BARRED BY R. 3:22-12.

           (C) DEFENDANT'S PETITION FOR PCR IS NOT
           BARRED BY R. 3:22-4.

           POINT II: THE SEXUALLY VIOLENT PREDATOR
           ACT BURDENS THE CONSTITUTIONAL RIGHTS
           OF DEFENDANT TO SUCH A DEGREE THAT THE
           CUMULATIVE EFFECT OF THAT BURDEN IS
           SUFFICIENT TO REQUIRE JUDICIAL RELIEF
           (NOT RAISED BELOW).

           (A) THE SVPA INFRINGES ON THE EX POST
           FACTO CLAUSES OF THE UNITED STATES AND
           NEW JERSEY CONSTITUTIONS. (U.S. CONST.
           ART. I, § 10; N.J. CONST. ART. IV, § 7, ¶ 3).

           (B) THE SVPA INFRINGES ON DOUBLE
           JEOPARDY PROTECTIONS UNDER THE UNITED
           STATES AND NEW JERSEY CONSTITUTIONS.
           (U.S. CONST. AMEND. V; N.J. CONST. ART. I, ¶
           11).

                                                                      A-4514-15T4
                                      5
(C) THE SVPA INFRINGES ON THE
CONFRONTATION CLAUSE OF THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, ¶ 10 OF THE
NEW JERSEY CONSTITUTION. (U.S. CONST.
AMEND. VI; N.J. CONST. ART. I, ¶ 10).

(D) THE SVPA INFRINGES ON THE RIGHT TO
TRIAL BY JURY OF THE SIXTH AMENDMENT
TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, ¶ 10 OF THE NEW JERSEY
CONSTITUTION. (U.S. CONST. AMEND. VI; N.J.
CONST. ART. I, ¶ 10).

(E) THE SVPA INFRINGES ON THE
PROTECTION AGAINST SELF-INCRIMINATION
OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION, AS WELL AS NEW
JERSEY STATUTORY AND COMMON LAW.
(U.S. CONST. AMEND. V; N.J.S.A. 2A:84A-19;
N.J.R.E. 503).

(F) THE SVPA INFRINGES ON THE
PROTECTION AGAINST CRUEL AND UNUSUAL
PUNISHMENT IN THE EIGHTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND
ARTICLE I, ¶ 12 OF THE NEW JERSEY
CONSTITUTION. (U.S. CONST. AMEND. VIII;
N.J. CONST. ART. I, ¶ 12).

(G) THE SVPA INFRINGES ON DEFENDANT'S
RIGHT TO EQUAL PROTECTION UNDER THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, ¶ 1 OF
THE NEW JERSEY CONSTITUTION. (U.S.
CONST. AMEND. XIV, N.J. CONST. ART. I, ¶ 11).



                                                A-4514-15T4
                      6
            (H) THE SVPA INFRINGES ON DEFENDANT'S
            RIGHT TO SUBSTANTIVE DUE PROCESS UNDER
            THE FOURTEENTH AMENDMENT TO THE
            UNITED STATES CONSTITUTION AND ARTICLE
            I, ¶ 11 OF THE NEW JERSEY CONSTITUTION.
            (U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, ¶
            11).

            (I) THE SVPA INFRINGES ON DEFENDANT'S
            RIGHT TO PROCEDURAL DUE PROCESS UNDER
            THE FOURTEENTH AMENDMENT TO THE
            UNITED STATES CONSTITUTION AND ARTICLE
            I, ¶ 1 OF THE NEW JERSEY CONSTITUTION.
            (U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, ¶
            11).

            [J] THE SVPA INFRINGES ON DEFENDANT'S
            RIGHT TO FUNDAMENTAL FAIRNESS UNDER
            THE NEW JERSEY CONSTITUTION.

      Defendant filed a supplemental brief as a self-represented litigant, in

which he asserts the following point:

            POINT I: ACCORDING TO CRIMINAL
            PROCEDURES AND DUE PROCESS, THE NJ
            LEGISLATORS FAILED TO WRITE IN THE SVP
            ACT, "FIRST" GETTING PERMISSION BY THE
            ORIGINAL CRIMINAL SENTENCING JUDGE TO
            EVALUATE THE PRISONER FOR COMMITMENT
            WHILE HE/SHE IS SERVING THEIR CRIMINAL
            SENTENCE.

      We reject the contentions advanced by both defendant and his counsel as

unsupported by law.



                                                                     A-4514-15T4
                                        7
      Defendant's second petition for PCR is time-barred. Rule 3:22-12(a)(2)

provides that a second petition for PCR shall not be filed more than one year

after the latest of:

             (A) the date on which the constitutional right asserted
             was initially recognized by the United States Supreme
             Court or the Supreme Court of New Jersey, if that
             right has been newly recognized by either of those
             Courts and made retroactive by either of those Courts
             to cases on collateral review; or

             (B) the date on which the factual predicate for the
             relief sought was discovered, if that factual predicate
             could not have been discovered earlier through the
             exercise of reasonable diligence; or

             (C) the date of the denial of the first or subsequent
             application for post-conviction relief where ineffective
             assistance of counsel that represented the defendant on
             the first or subsequent application for post-conviction
             relief is being alleged.

      First, defendant does not assert any constitutional right that was initially

recognized by either the United States Supreme Court or the Supreme Court of

New Jersey within one year of the filing of his second PCR petition. See R.

3:22-12(a)(2)(A). Second, defendant became aware of the factual predicate for

the relief he seeks in his second petition when, in 2007, his commitment to the

STU continued despite the fact the sentenced imposed for the sexual assault

conviction terminated.


                                                                          A-4514-15T4
                                        8
      Third, defendant did not file his second petition for PCR until March 26,

2015. The PCR court entered the order denying the relief he sought in his first

petition on April 17, 2009. We affirmed that order in 2011 and the Court

denied his petition for certification in 2012. Further, in his second petition,

defendant does not assert the attorney who represented him on his first petition

was ineffective.

      Accordingly, because defendant does not meet any of the conditions in

Rule 3:22-12(a)(2), the PCR court appropriately dismissed the second petition

on the ground it was time-barred. See R. 3:22-4(b). In addition, the grounds

for relief defendant asserts in his second petition are barred because he could

have but did not raise them in his first one. R. 3:22-4(a)(1).

      Defendant argues the ten-year term of imprisonment he served on his

conviction for sexual assault was improperly extended when he was

"sentenced" to the STU and, therefore, his commitment to the STU constitutes

an illegal sentence. To overcome the time constraints in Rule 3:22-12(a)(2),

defendant relies upon Rule 3:21-10(b)(5), which provides a defendant is not

time-barred from challenging an illegal sentence. We agree Rule 3:21-

10(b)(5) does provide that an order may be entered at any time correcting a




                                                                          A-4514-15T4
                                        9
sentence not authorized by law, but defendant was not sentenced to the STU.

He was civilly committed under the SVPA.

       "[T]he [SVPA] is designed to protect the public from dangerous

predators and to treat sex offenders who are, by definition, suffering from a

mental abnormality." In re Civil Commitment of W.X.C., 204 N.J. 179, 188

(2010) (citing In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 97, (App.

Div. 2007)). "Individuals are civilly committed under the [SVPA] because

they pose a danger to the public health and safety due to their behavior." In re

Civil Commitment of J.H.M., 367 N.J. Super. 599, 610 (App. Div. 2003). The

purposes of the SVPA are regulatory. W.X.C., 204 N.J. at 188.

      "The SVPA is a civil statute . . . ." In re Commitment of J.M.B., 197

N.J. 563, 578 (2009). As our Supreme Court noted in W.X.C., "[a]s part of

our review of the SVPA . . . we have specifically emphasized that our

Legislature intended to create a civil, rather than a penal, statute." 204 N.J.

188. "[T]he SVPA is not part of the criminal code and it has been clearly

determined that civil commitment under the SVPA is not punitive." J.M.B.,

197 N.J. at 577 (citing State v. Bellamy, 178 N.J. 127, 138 (2003)). Here,

defendant's commitment to the STU was and is not a sentence; the sentence on

his conviction for sexual assault terminated in 2007 and was not extended by


                                                                          A-4514-15T4
                                       10
virtue of being civilly committed. Defendant's contention he is serving an

illegal sentence must be rejected. Accordingly, his second petition for PCR is

time-barred.

      Notwithstanding, we considered defendant's remaining arguments. We

conclude they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2). We merely note his principal contentions are either

not supported by the SVPA or have been rejected by decisional authority. We

cite just a few examples.

      Defendant's claim the SVPA violates ex post facto laws and that the

standard of proof in SVPA proceedings should be beyond a reasonable doubt

was rejected by our Supreme Court in J.M.B., 197 N.J. at 578, 600-01. The

SVPA has never required trial by jury. See J.H.M., 367 N.J. Super. at 606-07.

The Court rejected a challenge the SVPA violated double jeopardy

considerations. In re Commitment of W.Z., 173 N.J. 109, 133-34 (2002). In

the matter In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 225 (App.

Div. 2007), we noted "commitment proceedings are not part of a 'criminal

prosecution' giving rise to Confrontation Clause protection under the Sixth

Amendment to the Federal Constitution or Article 1, para. 10 of the New

Jersey Constitution."


                                                                        A-4514-15T4
                                      11
Affirmed.




                 A-4514-15T4
            12
