The opinion of the court was delivered by: WILLIAM G. BASSLER
For the reasons discussed below, petitioner's request for habeas corpus relief will be granted with respect to his sentencing; his request for relief with respect to his conviction is denied.
I. Facts and Procedural History
On December 30, 1980, petitioner was charged on five counts involving an attempted armed robbery on October 12, 1980. The counts included: (1) conspiracy to commit armed robbery, in violation of N.J. Stat. Ann. 2C:5-2; (2) possession of a handgun without a permit, in violation of N.J. Stat. Ann. 2C:39-5(b); (3) possession of a handgun with a purpose to use it unlawfully, contrary to N.J. Stat. Ann. 2C:39-4; (4) committing aggravated assault by knowingly causing serious bodily injury to victim, Christine Vay, in violation of N.J. Stat. Ann. 2C:12-1(b)(1); and (5) attempt to commit armed robbery with a deadly weapon, in violation of N.J. Stat. Ann. 2C:15-1. Da-1-6.
Petitioner was convicted of all five counts and the trial judge committed him to the custody of the Commissioner of the Department of Corrections for consecutive terms of ten years, with a minimum parole ineligibility of five years on the first count; five years on the second count; ten years, with five years of parole ineligibility on the fourth count; and twenty years, with ten years of parole ineligibility on the fifth count. The third count conviction was deemed to merge into the fifth count conviction. Thus, petitioner's total sentence amounted to forty-five years, with twenty years of parole ineligibility. See Unpublished Opinion of Superior Court of New Jersey Appellate Division, at Da-23-24.
Petitioner appealed both the fact of his conviction and the duration of his sentence to the Appellate Division; on October 4, 1982, the trial court's decisions were affirmed without opinion by the Appellate Division, as permitted by N.J. Rule 2:11-3(e)(2). Id. at Da-25.
Petitioner challenged the Appellate Division's affirmance by petitioning for certification to the New Jersey Supreme Court, Da-27, however, in an order dated December 6, 1982, and filed December 8, 1982, the state supreme court denied certification.
Petitioner then moved in the Appellate Division for reconsideration of his sentence on March 3, 1983, Da-45-47. This motion also was denied. Da-48 (Date of order illegible).
Petitioner petitioned the Superior Court of New Jersey Law Division for post-conviction relief ("PCR") on the grounds that his sentencing exceeded the state statutory guidelines pursuant to N.J. Stat. Ann. 2C:44, and that the "sentencing judge based his sentence upon 'information' without giving notice to the defendant that such 'information' would be used and without giving the defendant the opportunity to answer the same." Petition for Post-Conviction Relief at Da-49. Petitioner's petition was denied on January 30, 1987. Habeas Corpus Petition P 11(a)(5) & (6).
II. Exhaustion Requirement