April 24, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDWARD LAYTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 94-11-1197.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 17, 2009
Before Judges Winkelstein and Fuentes.
Defendant Edward Layton appeals from the order of the Law Division, Criminal Part denying his post conviction relief (PCR) petition. We affirm.
On November 14, 1994, defendant pled guilty to one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1). Defendant admitted to sexually assaulting his girlfriend's three-year-old daughter by inserting a socket wrench extension into the child's vagina. Under the terms of the plea agreement, the State was free to argue for a sentence of up to twelve years in State prison. The court sentenced defendant on June 1, 1995, to a term of ten years to be served at the Adult Diagnostic and Treatment Center (ADTC). N.J.S.A. 2C:47-1. Defendant did not file a direct appeal challenging any aspect of his conviction or sentence.
On July 16, 2001, the date scheduled for defendant's release from the ADTC, the State filed a petition for defendant's civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Although not explicitly stated in the record, we infer that the State's SVPA petition was granted and defendant was committed. We further assume that defendant's status in this regard has not changed.
On August 2, 2006, defendant filed the PCR petition under review here, arguing that he was denied the effective assistance of counsel when his attorney failed to inform him that, by pleading guilty to first-degree aggravated sexual assault, he was exposed to civil commitment under the SVPA. Defendant cites State v. Bellamy, 178 N.J. 127 (2003), in support of his argument.
Judge Geiger denied the PCR petition without an evidential hearing. He found that the petition was barred under R. 3:22-12 because it was filed more than five years after the date he was sentenced. Notwithstanding this procedural impediment, Judge Geiger also found that the petition was without merit because the Supreme Court's mandate in Bellamy was given "pipeline retroactivity," that is, applicable only to future cases and to those pending direct appellate review. Bellamy, at 143. Defendant's forty-five day window for direct appeal expired long before Bellamy was decided.
Defendant now appeals raising the following arguments.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND THE PLEA IS FUMDAMENTALLY UNFAIR UNDER STATE V. BELLAMY, 178 N.J. 127 (2003).
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS TIME-BARRED BECAUSE DEFENDANT HAS ESTABLISHED "EXCUSABLE NEGLECT" UNDER RULE 3:22-12(A).
We reject these arguments and affirm substantially for the reasons expressed by Judge Geiger in his oral opinion delivered from the bench on January 3, 2008. The rule announced by the Supreme Court in Bellamy was clearly given pipeline retroactivity. Bellamy, supra, 178 N.J. at 143. Defendant is therefore not covered by this ruling. The PCR petition is time-barred under R. 3:22-12 because defendant has not established excusable neglect. State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009).
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