May 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM A. LAYTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 99-02-0180.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 11, 2009
Before Judges C.L. Miniman and Baxter.
Defendant William A. Layton appeals the denial of his petition for post-conviction relief (PCR) on procedural and substantive grounds. Because the petition was clearly time barred, we affirm.
Defendant was charged on February 9, 1999, in a single-count indictment with three instances of second-degree sexual assault, N.J.S.A. 2C:14-2c, having committed an act of sexual penetration upon J.W. by using physical force or coercion.*fn1 The Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, had already been adopted on August 12, 1998, to be effective August 12, 1999. See L. 1998, c. 71, § 18 ("This act shall take effect one year after enactment...."). Defendant pled guilty to one offense on May 10, 1999. He acknowledged that he would be examined at the Avenel Diagnostic and Treatment Center and that he might be required to serve his sentence at Avenel, where the normal parole guidelines would not apply. He further acknowledged that he would be subject to a sentence of community supervision for life. Defendant did not move to withdraw his plea.
Defendant was sentenced on September 30, 1999. By that time, Avenel determined that he was a repetitive and compulsive offender and that he would serve his time in Avenel and not be classified for parole. Defendant elected not to challenge the Avenel finding. The judge imposed a term of six years with a five-year period of parole ineligibility to be served at Avenel and sentenced him to community supervision for life. No appeal was taken.
On August 29, 2003, defendant completed his sentence and he was transferred to the Special Treatment Unit (STU) in Kearny as a sexual predator under the SVPA. Defendant waited more than three years after the transfer to the STU to file his petition for PCR on November 22, 2006. Had defendant filed his PCR petition at the time he was transferred to the STU, or even as much as one year thereafter, his petition would have been filed within the five-year limit established by Rule 3:22-12(a). The matter was heard and denied on October 19, 2007, and this appeal followed.
Defendant raises the following issues on appeal:
POINT I - PETITIONER WAS PROVIDED NO NOTICE OF POTENTIAL SVPA COMMITMENT RENDERING THE GUILTY PLEA UNKNOWING AND INVOLUNTARY AND FUNDAMENTALLY UNFAIR.
POINT II - PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
POINT III - THE COURT ERRED IN FINDING THAT APPELLANT'S PETITION FOR POST CONVICTION RELIEF WAS TIME BARRED.
PCR, "'New Jersey's analogue to the federal writ of habeas corpus,'" State v. Milne, 178 N.J. 486, 491 (2004) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)), is governed by Rule 3:22. PCR is not a substitute for direct appeal. R. 3:22-3. A PCR petition may not be filed more than five years after the judgment or sentence attacked "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a). Such a claim must be made in the petition and allege facts sufficient to support it. State v. Cann, 342 N.J. Super. 93, 102 (App. Div.), certif. denied, 170 N.J. 208 (2001). No such showing has been made here.
We have enforced this rule to bar review of untimely PCR petitions. See State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div.) (difficulty reading and writing and ignorance of right to seek PCR does not excuse late petition), certif. denied, 162 N.J. 199 (1999); State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998) (mistake of law does not amount to excusable neglect; petition filed beyond five years barred), aff'd as modified, 162 N.J. 240 (2000); State v. Dugan, 289 N.J. Super. 15, 22 (App. Div.) (finding same), certif. denied, 145 N.J. 373 (1996); State v. Miller, 277 N.J. Super. 122, 125, 129 (App. Div. 1994) (petition filed six and one-half years after conviction time barred), certif. denied, 142 N.J. 449 (1995); State v. Jenkins, 221 N.J. Super. 286, 293 (App. Div. 1987) (petition filed more than five years after judgment of conviction time barred), certif. denied, 113 N.J. 344 (1988), cert. denied, 488 U.S. 1032, 109 S.Ct. 843, 102 L.Ed. 2d 975 (1989).
State v. Afanador, 151 N.J. 41 (1997), provides no comfort to defendant because he had no appeal pending during the running of the five-year period following his conviction and sentence, nor did he seek to raise the issue and was foreclosed from doing so by the court. Id. at 52-53. His petition was clearly out of time even though he had five years to explore the ramifications of the SVPA and seek relief.