STATE OF NEW JERSEY v. ALBERT LAMPLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2052-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALBERT LAMPLEY, a/k/a

TIMOTHY NELSON,

Defendant-Appellant.

________________________________________________________________

March 2, 2012

Submitted February 15, 2012 - Decided

Before Judges Yannotti and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 96-12-1435.

Joseph E. Krakora, Public Defender, attorney for appellant (J. Stewart Borrow, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

Defendant pled guilty, pursuant to a plea agreement, to second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c), and third-degree terroristic threats, N.J.S.A. 2C:12-3(a), and was sentenced on July 28, 1997. On the attempted sexual assault charge, he was sentenced to ten years at the Adult Diagnostic and Treatment Center (ADTC), with a parole ineligibility period of five years, community supervision for life and the condition that he comply with all applicable provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23. He was sentenced to a concurrent term of five years with a parole ineligibility period of two-and-one-half years on the terroristic threats charge. The sentencing court's written statement of reasons for the sentence included the following:

This is defendant's fourth adult sex related conviction. He committed this crime within weeks after his parole from the ADTC. The ADTC found him to come within the purview of the Sex Offender Act. The evaluator said he was a sexually dangerous person. The facts of this case bolster this conclusion. He attacked a woman, a total stranger, while she was trying to make a phone call on the street.

Defendant did not appeal from his conviction or sentence. The New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, was enacted in 1998 and became effective August 12, 1999. In November 2003, prior to defendant's scheduled release from prison, he was involuntarily committed pursuant to the SVPA.

Approximately eleven years after he was sentenced, defendant filed a pro se PCR petition on March 27, 2008. Among the issues he raised in the petition was an allegation that he was denied the effective assistance of counsel because he was not advised at the time of his guilty plea that he would be civilly committed after completing his sentence and the argument that the retroactive application of the SVPA was unconstitutional.

On December 11, 2008, assigned counsel filed a brief in support of defendant's PCR petition, raising the following issues: (1) defendant should be permitted to withdraw his guilty plea because he was not advised of the applicability of the SVPA or, in the alternative, the SVPA should not apply to him; (2) defendant's conviction should be reversed because he was not advised that the SVPA would apply to him; (3) applicability of the SVPA to defendant is a direct consequence of his guilty plea; (4) defendant was denied the effective assistance of counsel at his plea hearing and sentencing; and (5) defendant's PCR petition was timely.

At no time did defendant support his petition with a certification in which he stated that he would not have entered a guilty plea pursuant to the plea agreement if he had known he would be subject to civil commitment following the completion of his sentence. In addition, he has presented no certification in which he asserts facts to support the argument that his delay in filing a petition for PCR was the result of excusable neglect.

The PCR judge denied defendant's petition without an evidentiary hearing. In this appeal, defendant presents the following issues for our consideration:

POINT I

BECAUSE PETITIONER WAS NOT ADVISED ABOUT THE APPLICABILITY OF THE SEXUALLY VIOLENT PREDATOR ACT TO HIM, FUNDAMENTAL FAIRNESS DICTATES THAT HE SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA AND TAKE HIS CASE TO TRIAL, OR THE COURT SHOULD HOLD THAT THE SEXUALLY VIOLENT PREDATOR ACT DOES NOT APPLY TO HIM.

POINT II

THE PETITIONER'S CONVICTION SHOULD BE SET ASIDE BECAUSE HE WAS NOT ADVISED THAT THE SEXUALLY VIOLENT PREDATOR ACT WOULD APPLY TO HIM.

POINT III

PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV

PETITIONER FILED A TIMELY PETITION FOR POST-CONVICTION RELIEF SINCE HE COULD NOT HAVE KNOWN ABOUT THE CONSEQUENCES OF THE SEXUALLY VIOLENT PREDA[T]ORS ACT UNTIL NOVEMBER, 2003 WHEN HE WAS CIVILLY COMMITTED.

POINT V

PURSUANT TO STATE V. WEBSTER, THE CONTENTIONS IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF THAT HAVE NOT BEEN RAISED HEREIN ARE HEREBY INCORPORATED BY REFERENCE AS IF SET FORTH IN FULL HEREIN.

We have reviewed these arguments in light of the applicable legal principles and are satisfied that none have any merit.

Rule 3:22-12(a)(1) provides in pertinent part:

[N]o petition [for post conviction relief] shall be filed pursuant to this rule more than 5 years after the date of entry . . . of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect[.]

"The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). To be entitled to a relaxation of the Rule based upon excusable neglect, the petitioner must "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992); see also R. 3:22-10(c) ("Any factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing.").

Defendant attempts to avert the time-bar by arguing that he could not have been aware that he would be civilly committed pursuant to the SVPA until he was, in fact, civilly committed in November 2003. He has presented no certification to support this assertion. Even if defendant could be excused from filing a petition during the period before the SVPA was enacted, the fact is the SVPA was enacted one year after he was sentenced and became effective one year later. However, defendant did not file his petition for nearly a decade after the SVPA was enacted. In short, he has failed to demonstrate that his delay in filing the petition was due to excusable neglect.

We are satisfied that defendant's remaining arguments, including the contention that his counsel was ineffective in failing to advise him of the consequences of a statute that had not been enacted at the time of his guilty plea, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).