On appeal from Superior Court of New Jersey, Law Division, Atlantic County, 87-12-2653-A.
Before Judges Stern, Coburn and Collester
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 6, 2002
Defendant James McIlhenny appeals from the denial of his second petition for post-conviction relief (PCR) following his 1987 conviction for murder. We affirm.
Arthur Banner was an eighty-one year old eccentric recluse living in Ellwood, New Jersey. When his shack burned in March 1987, he moved to a nearby abandoned car. On May 25, 1987 his badly decomposed body was found next to a junked Chevrolet Vega. The cause of death was homicide due to severe blunt force facial injuries. The date of death could not be determined because of the condition of the body.
The investigation began with interviews of acquaintances of Banner, who gave varied accounts as to when he had last been seen. Some claimed to have seen him at a time which was inconsistent with the degree of decomposition of his body. As they pursued the matter further, the police interviewed defendant's girlfriend, Martha Butterhof, who told them she was with defendant on May 10, 1987, when he admitted he had assaulted and attempted to rob Banner the night before. Butterhof said that defendant described repeatedly hitting Banner in the face with his fists and leaving him "barely breathing." He added that Ray Stover came with him to rob Banner but took no part in the beating.
When Stover was interviewed, he admitted he and the defendant went to rob Banner in the early morning hours of May 10, 1987, after a night of drinking. It was rumored that the elderly man kept hidden about $2,000. Stover said that when they found Banner, defendant demanded the money. Banner refused. Defendant struck Banner with his fist and continued punching and kicking him until he was unconscious. Stover and defendant first searched the car where Banner lived and turned the old man's body over to search his pockets. They found no money and left Banner bleeding and unconscious next to a junked Vega. Stover saw that defendant's work boots were "filled with blood."
Defendant was then taken into custody. He was twenty-five years old, 6'5" and weighed 280 pounds. He told police that he demanded money from Banner, beat him into unconsciousness and left him lying next to the Vega.
On December 16, 1987, defendant waived his right of indictment and pleaded guilty to an accusation charging felony murder, N.J.S.A. 2C:11-3a(3), in exchange for the prosecutor's sentence recommendation of life imprisonment with thirty years parole ineligibility. During the plea hearing, the defendant gave the following factual basis:
Well, I was drunk. I was told by a couple of friends that [the victim] had a large sum of money on him. So I went back there, relieved him of his money. He got loud and I hit him a few times and knocked him out and might have kicked him. I don't remember. And I searched him and his car. We searched him and his car, I should say. Found nothing. When I left he was still breathing. He had a broken nose.
After the judge then asked about the extent of his intoxication, defendant consulted with his lawyer and then told the judge he understood that his intoxication at the time of the crime was insufficient to establish a defense to the charge. Thereafter, on February 11, 1988, he was sentenced pursuant to the plea agreement to a term of life imprisonment with thirty years parole ineligibility.
Defendant filed a direct appeal on November 2, 1988 in which he argued his sentence was excessive. We disagreed and affirmed. On April 21, 1989, defendant filed a motion to vacate the judgment of conviction under R. 3:20-1 based on his claim of a "possibility of a recanting witness." The motion was denied, and no appeal was taken.
On September 28, 1990, defendant filed his first PCR petition in which he sought to withdraw his guilty plea on grounds he was mentally incompetent at the time of his plea. After denial by the hearing judge, we affirmed on the procedural ground of R. 3:22-4 since defendant failed to raise the issue on his direct appeal. We further noted that trial counsel's decision to forego the argument of mental incompetency was entirely reasonable in light of the record of the ...