STATE OF NEW JERSEY v. TYRONE ELLISON

 

(NOTE: The status of this decision is Published.)

                          RECORD IMPOUNDED

                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-2216-16T3

STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                  June 20, 2018
v.
                                              APPELLATE DIVISION

TYRONE ELLISON,

     Defendant-Appellant.
____________________________

            Submitted June 6, 2018 – Decided June 20, 2018

            Before Judges Alvarez, Nugent, and Geiger.

            On appeal from Superior Court of New Jersey,
            Law Division, Essex County, Indictment No.
            01-06-2564, whose opinion is reported at 448
            N.J. Super. 113 (Law Div. 2016).

            Joseph E. Krakora, Public Defender, attorney
            for appellant (Alison Perrone, Designated
            Counsel, on the brief).

            Robert D. Laurino, Acting Essex County
            Prosecutor, attorney for respondent (Frank
            J. Ducoat, Special Deputy Attorney General/
            Acting Assistant Prosecutor, of counsel and
            on the brief).

PER CURIAM

     Defendant Tyrone Ellison appeals from a September 13, 2016

order    denying   his   first   petition   for   post-conviction      relief

(PCR).    We affirm.
    Defendant was indicted for second-degree sexual assault,

N.J.S.A.       2C:14-2(c)        (count             one);      third-degree        criminal

restraint,          N.J.S.A.      2C:13—2            (count      two);        third-degree

endangering       the   welfare       of    a     child,     N.J.S.A.       2C:24-4     (count

three);     and      third-degree          criminal         sexual    contact,     
N.J.S.A.

2C:14-3(a) (count four).

    On June 26, 2001, defendant pled guilty to count four, as

amended, fourth-degree criminal sexual contact, 
N.J.S.A. 2C:14-

3(b),     in    exchange       for      a       recommendation         of     a   five-year

probationary         term,   conditioned            on   not    more     than     364     days

incarceration to run concurrently to a sentence defendant was

then serving, and dismissal of the remaining counts.

    On September 4, 2001, defendant was sentenced in accordance

with the plea agreement to time served as a condition of five

years'     probation.            At        sentencing,         the     judge      confirmed

defendant's         conviction    did       not     subject     him    to    Megan's      Law,


N.J.S.A. 2C:7-1 to -19.                 Neither the judge nor plea counsel

addressed      or    mentioned       the    Sexually         Violent    Predator's        Act,


N.J.S.A. 30:4-27.24 to -27.38 (SVPA), which became effective in

1999, during the plea hearing or at sentencing.                              Defendant did

not file a direct appeal of his conviction or sentence.




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    Defendant       subsequently     violated      probation       and   the    court

resentenced him on April 11, 2003, to a three-year prison term.

Defendant did not appeal from the resentencing.

    In September 2011, the State filed a petition seeking to

civilly    commit    defendant      under    the   SVPA,     relying     upon     the

instant conviction as one of the predicate offenses.                     Following

a September 16, 2011 order for temporary civil commitment, the

court granted the State's petition to civilly commit defendant

under the SVPA.      Defendant remains civilly committed.

    On December 24, 2015, fourteen years after entry of his

judgment   of   conviction,      defendant    filed     a    petition     for   PCR.

Counsel was appointed to represent defendant.                 Defendant alleged

his plea counsel was ineffective for failing to advise him that

his plea exposed him to the possibility of civil commitment

under the SVPA, as subsequently mandated by the Supreme Court in

State v. Bellamy, 
178 N.J. 127, 138 (2003).                   Defendant claimed

his delay in filing his petition was excusable because he only

learned of this collateral consequence to his plea when the

State brought the civil commitment proceedings against him in

2011.      Defendant   did    not    claim    counsel       gave   him   erroneous

advice.

    On August 8, 2016, Judge Russell J. Passamano heard oral

argument and subsequently issued a September 13, 2016 order and




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twenty-eight-page written opinion denying defendant's petition

without an evidentiary hearing.               State v. Ellison, 
448 N.J.

Super. 113 (Law Div. 2016).            Judge Passamano held defendant's

petition was time-barred by Rule 3:22-12(a) and defendant had

not demonstrated excusable neglect warranting relaxation of the

five-year time bar for filing a first PCR petition.                    The judge

further   held   an    evidentiary     hearing      was     unnecessary     because

there were no material facts in dispute and the petition was

substantively without merit.         This appeal followed.

    On    appeal,     defendant     renews    the   contentions      made    below,

raising the following points:

           POINT ONE

           THE PCR COURT ERRED IN CONCLUDING THAT
           DEFENDANT'S   PETITION  FOR   POST-CONVICTION
           RELIEF WAS TIME BARRED BECAUSE DEFENDANT'S
           FAILURE TO FILE HIS PETITION WITHIN FIVE
           YEARS OF HIS CONVICTION WAS DUE TO EXCUSABLE
           NEGLECT AND ENFORCEMENT OF THE TIME BAR
           WOULD RESULT IN A FUNDAMENTAL INJUSTICE.

           POINT TWO

           DEFENDANT WAS ENTITLED TO AN EVIDENTIARY
           HEARING   ON   HIS CLAIM   OF   INEFFECTIVE
           ASSISTANCE OF PLEA COUNSEL FOR FAILING TO
           PROPERLY ADVISE HIM THAT THE OFFENSE FOR
           WHICH HE WAS PLEADING GUILTY COULD BE A
           PREDICATE OFFENSE FOR PURPOSES OF CIVIL
           COMMITMENT   UNDER THE   SEXUALLY   VIOLENT
           PREDATORS ACT.

    We    find   no    merit   in   defendant's       contentions    and     affirm

substantially    for     the   reasons       stated    in    Judge   Passamano's



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comprehensive and well-reasoned published opinion.   No further

discussion is warranted.   R. 2:11-3(e)(2).

    Affirmed.




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