On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-08-1652.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
Defendant Calvin McCloud appeals from a September 28, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel and requesting an evidentiary hearing. We affirm.
On or about August 30, 2001, defendant was indicted by an Atlantic County Grand Jury on second-degree sexual assault, N.J.S.A. 2C:14-2c (count one); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count three). Following denial of a suppression motion, on September 9, 2002, after executing a plea form, defendant pled guilty to the first count and to fourth-degree failure to register as a sexual offender, N.J.S.A. 2C:7-2a, on another indictment.
Defendant appeared for sentencing on December 6, 2002, and was sentenced in accordance to his plea agreement to a nine-year custodial term with a five-year parole disqualifier as a repeat offender, N.J.S.A. 2C:14-6, for second-degree sexual assault, and a concurrent fifteen-month term for his failure to register as a sexual offender. The court imposed the appropriate fines and defendant was also subjected to parole supervision for life pursuant to Megan's Law, N.J.S.A. 2C:43-6.4, DNA testing, and registration. The remaining counts were dismissed.
On February 13, 2003, defendant filed a notice of appeal, which he voluntarily withdrew on May 18, 2003. We dismissed the appeal on May 28, 2003.
On September 13, 2007, the Department of Corrections issued a notice that the Attorney General's Office had determined defendant was civilly committable under the Sexually Violent Predator's Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and he was committed to the Adult Diagnostic and Treatment Center, Avenel on September l5, 2007, where he remains.
On or about June 6, 2008, defendant filed a pro se PCR petition, supplemented with a submission by counsel on October 9, 2009. Defendant claimed, in pertinent part: (1) the five-year time bar of Rule 3:22-12 should be relaxed because his filing of the PCR petition six months late was the result of excusable neglect and his sentence was illegal; (2) trial counsel was ineffective because he gave "incorrect legal advice regarding the amount of time [defendant] could actually remain either incarcerated or committed in an institution" and failed to correctly advise defendant he could be indefinitely committed to Avenel at the conclusion of his State sentence, despite the fact that he was not determined to be a repetitive and compulsive offender; (3) appellate counsel was ineffective in failing to argue the plea was not knowing and voluntary; and (4) defendant should be allowed to withdraw his guilty plea as it was not knowing and voluntary because he was not informed of the possibility of civil commitment at the conclusion of his sentence even if the Avenel evaluation determined he was not compulsive and repetitive.
Defendant certified he was not advised of a possible sentence of involuntary civil commitment and understood he would only be subject to treatment at Avenel if he were found to be a repetitive and compulsive offender. He further certified that in November 2007, he asked his appellate attorney to file an application for PCR, but was informed his attorney was leaving the Public Defender's Office and was instructed to fill out the PCR form himself. After defendant filed his application with the court, it was returned to him because it was improperly filled out. Defendant also claimed his trial attorney did not explain to him the meaning of question number eight on the plea form.
Following oral argument on April l and May 18, 2010, Judge Bernard DeLury, Jr. denied defendant's PCR petition, finding the petition was time-barred under Rule 3:22-12 as it was filed six months beyond the five-year deadline, and defendant could have raised the issue in his motion for reconsideration of sentence or on direct appeal. Substantively, the court found defendant did not receive ineffective assistance of counsel because he was fully aware of the possibility that he could be civilly committed and State v. Bellamy, 178 N.J. 127, 131 (2003), which held that defendants must be informed of the possibility of civil commitment prior to pleading guilty, did not apply retroactively to defendant's case. The court's ruling was memorialized in an order of September 28, 2010. This appeal ensued.