July 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RODNEY BULL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, 90-07-1263-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 31, 2007
Before Judges Stern and A. A. Rodríguez.
Defendant, Rodney Bull, appeals from the denial of his second petition for post-conviction relief (PCR). Defendant has also filed a third PCR petition, which has been denied. This appeal relates only to the second PCR petition. We affirm.
These are the operative facts. On October 2, 1992, following a jury trial, defendant was convicted of second degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth degree unlawful possession of a knife, N.J.S.A. 2C:39-5d; third degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39- 4d; and third degree terroristic threats, N.J.S.A. 2C:12-3b. Judge Wertheimer granted the State's motion for imposition of an extended term and merged possession of a knife for unlawful purpose into the aggravated assault conviction. The judge imposed a twenty-year term with a ten-year parole disqualifier on the aggravated assault conviction; a concurrent eighteen- month term on the unlawful possession of a knife conviction; and a consecutive five-year term on the terroristic threats conviction. Thus, the aggregate term imposed is twenty five years with a ten-year parole disqualifier. The judge also imposed the mandatory penalties.
On direct appeal, we reversed the possession of a knife for an unlawful purpose conviction, based on an erroneous jury charge and otherwise affirmed the other conviction and sentence. State v. Rodney Bull, A-3654-93T4 (App. Div. July 11, 1995), certif. denied, 143 N.J. 320 (1995).
Defendant filed a first PCR petition. The Law Division denied the petition. We affirmed because the petition "raises issues procedurally barred under R. 3:22-5." State v. Rodney Bull, A-2513-01T4 (App. Div. May 14, 2003). Defendant argued in his second PCR petition that:
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY FINDINGS OF SERIOUS BODILY INJURY BEYOND A REASONABLE DOUBT. THE STATE WAS ARBITRARY AND CAPRICIOUS [IN] SEEKING [AN] EXTENDED TERM.
The second and third petitions were denied by Judge Barisonek on April 28, 2005.*fn1
On appeal from the denial of his second PCR petition, defendant contends:
THE CLAIMS IN THIS PETITION COULD NOT HAVE BEEN RAISED BEFORE AND SO ARE NOT BARRED BY R. 3:22-12, R. 3:22-4, OR R. 3:22-5.
TRIAL, APPELLATE AND PCR COUNSEL WERE PREJUDICIALLY INEFFECTIVE BY FAILING TO DISCOVER OR RAISE THE CLAIM AT BAR THAT CLEARLY ENTITLES THE DEFENDANT TO RELIEF. N.J. CONST. (1947) ART. 1, PAR. 8, 10; U.S. CONST. AMEND. VI, XIV.
THE IMPOSITION OF A SECOND EXTENDED TERM SENTENCE ON THE DEFENDANT WITHOUT STATUTORY GUIDELINES OR ADMINISTRATIVE REGULATIONS VIOLATES THE PRINCIPLE OF SEPARATION OF POWERS AND DENIES THE DEFENDANT DUE PROCESS. U.S. CONST. ART. III; AMEND. V; AMEND. XIV; N.J. CONST. (1947) ART. 1, PAR. 1, ART. 3, PAR. 1.
We conclude that the contentions raised in the second PCR petition are barred by: R. 3:22-3 (bar on grounds that PCR is not a substitute for a direct appeal); R. 3:22-4 (bar on grounds that issue not previously raised); and R. 3:22-5 (bar on ground that issue was expressly adjudicated). Most importantly, the petition is barred by virtue of the five-year time bar set by R. 3:22-12(a). Defendant was convicted on October 2, 1992. This petition was filed on October 8, 2003.