July 12, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LARRY DANIELS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Ind. No. 91-05-2520.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 17, 2007
Before Judges Graves and Lihotz.
Defendant Larry Daniels appeals from an order denying his second petition for post-conviction relief (PCR), without an evidentiary hearing, entered on January 6, 2006. We affirm.
Following a jury trial, defendant was convicted of purposeful and knowing murder, felony murder, armed robbery and related weapons offenses. An aggregate term of life with a thirty-five year parole ineligibility period was imposed on October 25, 1991. Defendant's conviction and sentence were affirmed on appeal. State v. Daniels, No. A-2243-91 (App. Div. Nov. 30, 1994). His petition for certification was denied. State v. Daniels, 142 N.J. 449 (1995).
Relying on our opinion in State v. Beilkiewicz, 267 N.J. Super. 520 (App. Div. 1993), we affirmed the denial of defendant's first PCR petition, which principally asserted errors in the jury charge. State v. Daniels, No. A-6537-96 (App. Div. Jan. 22, 1999). We determined that any error was harmless, because "there was no basis for a jury to find defendant guilty other than as a principal." Ibid. Certification was denied on May 11, 1999.
In 2001, defendant filed a habeas corpus petition asserting "faulty jury instructions, hearsay testimony, and ineffective assistance of counsel," which was denied by the federal district court on November 1, 2001. The Third Circuit Court of Appeals denied defendant's "request for appealability" on January 9, 2003. The United States Supreme Court denied certiorari on June 3, 2003.
In late 2005, Defendant filed his second PCR petition, presented as an application to "correct an illegal sentence." See R. 3:22-12. In addition to a sentencing issue, defendant argued that his trial counsel was ineffective at the sentencing hearing, he raised issues concerning the jury instructions, and also claimed prejudicial error because a State's witness testified while shackled, wearing prison garb. The Law Division denied the PCR petition on January 6, 2006, concluding it was procedurally barred pursuant to Rule 3:22-4, -5, and -12(a). Additionally, the judge determined the claims were not supported by the record.
Defendant presents the following points on appeal:
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO ARGUE FOR THE LEAST POSSIBLE SENTENCE THAT COULD HAVE BEEN IMPOSED UNDER LAW.
TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT INSTRUCTED THE JURY IN A MANNER WHICH RELIEVED THE STATE OF ITS BURDEN OF PROVING EVERY ELEMENT OF THE OFFENSE.
ABSENT COMPELLING REASONS A TRIAL COURT [CAN]NOT REQUIRE A DEFENDANT TO APPEAR BEFORE A JURY IN RESTRAINTS.
THE EVIDENCE AGAINST DEFENDANT RESULTED FROM THE ILLEGAL PLEA BARGAIN OF THE TESTIFYING CODEFENDANT.
TRIAL TESTIMONY OF ALLEGED ACTS OF [THE] CODEFENDANT SHOULD HAVE BEEN EXCLUDED UNDER RULE 404(b).
Defendant argues plain error resulted because trial counsel failed to "argue vigorously for the least sentence allowable under law," and failed to raise applicable mitigating factors. Assuming our consideration is not barred by Rule 2:11-3(e)(2), we agree with the judge who denied the PCR petition, and reject defendant's contention, as the sentencing record does not support the position that defense counsel agreed with the State and suggested a life sentence be imposed. Counsel argued for a lesser sentence, emphasizing defendant's youth and his limited nonviolent criminal history.
In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). We will modify a sentence when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience. State v. Whitaker, 79 N.J. 503, 512 (1979).
Defendant correctly states that the sentencing judge did not specifically state that no mitigating factors applied in this matter. "In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider" the mitigating factors listed in N.J.S.A. 2C:44-1b. (Emphasis added). Where mitigating factors are amply based on the record before the sentencing judge, they must be considered in the deliberative process. See Dalziel, supra, 182 N.J. at 504. Defendant's argument, however, offers no specificity as to what mitigating factors applied to his case, and, further, he provides no evidence to support the application of any applicable factors. Id. at 505.
As to the issues raised in points two though four, we have reviewed defendant's contentions in the light of the record and applicable law. We find the arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We agree with the Law Division judge that the arguments presented are barred by Rule 3:22-4, as they could have been raised in a prior proceeding. Our procedural rules seek to achieve "the important state goals of finality and judicial economy." State v. Preciose, 129 N.J. 451, 474 (1992). Defendant fails to satisfy the burden to allege specific facts supporting the application of one of the exceptions found in Rule 3:22-4.
Equally fatal to the consideration of defendant's arguments of these issues is the five-year limitation of the filing of PCR petitions. R. 3:22-12(a). No explanation accompanied the filing to justify delay due to excusable neglect. Ibid.
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