Submitted February 19, 1998
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Before Judges Shebell, D'Annunzio and A.a. Rodr¡guez.
The opinion of the court was delivered by: Shebell, P.j.a.d.
Defendant, James Williams, appeals the denial of his third petition for post-conviction relief. The State cross-appeals. We affirm.
Williams and a co-defendant were indicted on the following charges: Count 1) armed robbery (N.J.S.A. 2C:15-1); Count 2) possession of weapon for unlawful purposes (N.J.S.A. 2C:39-4a); Count 3) possession of a prohibited weapon (a sawed-off shotgun) (N.J.S.A. 2C:39-3b); and Count 4) possession of a weapon without the requisite permit (N.J.S.A. 2C:39-5b). Tried to a jury, Williams was found guilty of all four counts on December 19, 1986. The State moved to have him sentenced to an extended term. On July 31, 1987, Williams was sentenced to an aggregate term of 50 years with a 25-year parole disqualifier. On October 9, 1987, the sentencing Judge denied Williams' motion for reconsideration. We upheld the conviction and our Supreme Court denied certification.
Williams' first post-conviction relief petition was denied on January 25, 1991. A second post-conviction relief petition was denied on April 2, 1991. A motion for rehearing was made based on documents concerning Williams' prior convictions and was denied on July 5, 1991. On January 8, 1993, we affirmed the denials of post-conviction relief.
On January 3, 1994, Williams filed his third petition for post-conviction relief claiming that he was not represented by counsel when a prior conviction was obtained against him in Canada. On April 5, 1995, the Judge denied Williams' petition. See State v. Williams, 284 N.J. Super. 142 (Law Div. 1995).
In March 1996, we granted Williams' motion to proceed as an indigent and to file his appeal nunc pro tunc. However, we denied his motion for assignment of counsel and the Supreme Court denied his petition for certification.
We first consider the State's sole contention in its cross-appeal that the Judge erred by not barring Williams' claims under R. 3:22-4, R. 3:22-5, and R. 3:22-12. The State maintains that we addressed the constitutionality of Williams' Canadian conviction in his direct appeal and the appeal from the first denial of post-conviction relief. We conclude that the Law Division Judge, on Williams' third petition for post-conviction relief, properly re-examined the issue when the Canadian trial transcripts were made available for the first time.
Rule 3:22-4 reads, in part:
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds... (b) that enforcement of the bar would result in fundamental inJustice.
The Judge correctly concluded that "fundamental inJustice" would result if the newly attained transcripts were not considered. In order to litigate Williams' contention with finality, the court needed to examine the exchange that occurred in the Canadian courtroom in 1970. The same reasoning applies to the bar of R. 3:22-5. Moreover, in Williams' initial appeal to this court, the argument that he lacked counsel does not appear to have been clearly raised.
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the ...