RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4263-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent, 

v.

G.M.,

Defendant-Appellant.

_________________________

Submitted May 30, 2019 – Decided June 12, 2019

Before Judges Alvarez and Mawla.

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Indictment Nos. 93-01-0006 

and 96-05-0776.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Dianne Glenn, Designated Counsel, on the 

brief). 

Esther Suarez, Hudson County Prosecutor, attorney for 

respondent (Stephanie Davis Elson, Assistant 

Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Defendant G.M.1appeals from an April 30, 2018 order denying his postconviction relief (PCR) petition and request for an evidentiary hearing. We 

affirm.

We take the following facts from the record. In 1993, defendant pled 

guilty to third-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3, of his girlfriend's 

three-year-old daughter. He received a three year sentence. In 1996, defendant 

pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(b), of his eightyear-old daughter and was sentenced to a five year term, Megan's Law 

registration, and evaluation and commitment to the Adult Diagnostic Treatment 

Center. Defendant did not appeal from either the convictions or the sentences.

Instead, defendant filed a PCR petition over twenty-three years after the 

first conviction and nearly seventeen years after the second. He claimed his first 

plea counsel was ineffective for not advising him the plea could be used to 

determine he was a sexually violent predator in the event of a subsequent 

conviction. He claimed his second plea counsel was ineffective because he did 

not advise defendant to pursue a PCR petition to vacate his first plea on such 

grounds and did not explain the civil commitment process to him. 

 

1 We utilize initials to protect the victims' identities. 
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The PCR judge ruled defendant's petition was time-barred pursuant to 

Rule 3:22-12. The judge found defendant's ignorance of the time period he had

to file his petition did not constitute excusable neglect or grounds to relax the 

time limitations under the rule. The judge concluded the State would be 

prejudiced if he granted the petition because the events which led to defendant's 

convictions occurred in 1993 and 1996, and even if the State could locate 

witnesses, "their recollection of the relevant events would be shaky at best." The 

judge noted there was no transcript of defendant's 1993 plea. He found 

defendant was adequately informed of the possibility of civil commitment

because, on defendant's 1996 plea form, he "answered in the affirmative when 

asked if he understood that civil commitment beyond his initial prison term is a 

possibility" and confirmed "trial counsel advised [him] about the civil 

commitment review process, its frequency, and avenues of legal appeal[.]" This 

appeal followed. 

On appeal, defendant argues as follows:

THE PCR COURT ERRED IN CONCLUDING 

DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF WAS TIME-BARRED AS 

THE DELAY WAS DUE TO DEFENDANT'S 

EXCUSABLE NEGLECT AND ENFORCEMENT OF 

THE TIME-BAR WILL RESULT IN A 

FUNDAMENTAL INJUSTICE.
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When the PCR court does not hold an evidentiary hearing, we "conduct a 

de novo review[.]" State v. Harris, 181 N.J. 391, 421 (2004). To show 

ineffective assistance of counsel, a defendant must satisfy the two-pronged test 

of Strickland v. Washington, 466 U.S. 668, 687 (1984) and adopted by our 

Supreme Court in State v. Fritz, 105 N.J. 42, 67 (1987). "The defendant must 

demonstrate first that counsel's performance was deficient, i.e., that 'counsel 

made errors so serious that counsel was not functioning as the "counsel" 

guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 

269, 279 (2012) (quoting Strickland, 466 U.S. at 687). The "defendant must 

overcome a strong presumption that counsel rendered reasonable professional 

assistance." Ibid. (citing Strickland, 466 U.S. at 689). Second, "a defendant 

must also establish that the ineffectiveness of his attorney prejudiced his 

defense. 'The defendant must show that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the proceeding would have 

been different.'" Id. at 279-80 (quoting Strickland, 466 U.S. at 694).

Having considered defendant's claims under the aforementioned 

standards, we affirm for the reasons stated by the PCR judge. We add the 

following comments to address defendant's argument that the holding in State 

v. Bellamy, 178 N.J. 127 (2003), applied retroactively to his case because his 
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A-4263-17T4

PCR petition constituted a form of direct review, which he had not yet 

exhausted. 

In Bellamy, the Supreme Court held that before accepting a plea that could 

lead to a civil commitment under the New Jersey Sexually Violent Predator Act,

fundamental fairness requires the court to inform a defendant of the potential 

consequences of the plea, including lifelong civil commitment. Id. at 139. The 

Court stated its ruling would apply with limited retroactivity to those cases 

pending direct review at the time. Id. at 142-43.

It is fundamental that a PCR petition "is not . . . a substitute for appeal

from conviction[.]" R. 3:22-3. There are limited exceptions to this rule. See

State v. Koch, 118 N.J. Super. 421, 429, 432-33 (App. Div. 1972) (holding a

PCR petition was not barred by Rule 3:22-3 where a defendant raised a claim of 

limited retroactivity on direct appeal that was denied without prejudice). 

Defendant failed to appeal from either conviction. For these reasons, we 

reject the argument his PCR petition was a form of direct review permitting the 

retroactive applicability of the holding in Bellamy. 

Affirmed.