Submitted June 6, 2018
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).
E. Krakora, Public Defender, attorney for appellant (Alison
Perrone, Designated Counsel, on the brief).
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).
Judges Alvarez, Nugent, and Geiger.
Tyrone Ellison appeals from a September 13, 2016 order
denying his first petition for post-conviction relief (PCR).
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)
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.
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.
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.
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
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.
August 8, 2016, Judge Russell J. Passamano heard oral
argument and subsequently issued a September 13, 2016 order
and 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