STATE OF NEW JERSEY VS. TYRONE ELLISON (01-06-2564, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 20, 2018
• Docket: A-2216-16T3
• Status: Published

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

2 A-2216-16T3 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

3 A-2216-16T3 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

4 A-2216-16T3 comprehensive and well-reasoned published opinion. No further

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

Affirmed.

5 A-2216-16T3