RECORD IMPOUNDED

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).

NOT FOR PUBLICATION WITHOUT THE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.
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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 
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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 
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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.
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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).
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(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).
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(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. 
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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. 
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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 
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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 
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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." 
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Affirmed.