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NOT FOR PUBLICATION WITHOUT THE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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