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State v. Dunston

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIAM DUNSTON, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-5-2522.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 18, 2007

Before Judges Skillman and Yannotti.

Defendant was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1), (2); aggravated assault, in violation of N.J.S.A. 2C:12-1b(1); possession of a weapon, a knife, under circumstances not manifestly appropriate for such lawful uses as it may have, in violation of N.J.S.A. 2C:39-5d; and possession of a weapon for the purpose of using it unlawfully against the person of another, in violation of N.J.S.A. 2C:39-4d.

Defendant entered into a plea bargain with the State under which he agreed to plead guilty to aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a, as a lesser included offense of purposeful or knowing murder, unlawful possession of a weapon and possession of a weapon for an unlawful purpose, and the State agreed to recommend a thirty-year term of imprisonment, with fifteen years of parole ineligibility, and to dismiss the aggravated assault charge. The trial court sentenced defendant in accordance with the plea agreement to a thirty-year term, with fifteen years of parole ineligibility, and to a concurrent five-year term for unlawful possession of a weapon. The court merged defendant's conviction for possession of a weapon for an unlawful purpose and dismissed the aggravated assault charge.

On defendant's appeal, which was heard on an excess sentence calendar, see R. 2:9-11, we affirmed the judgment of conviction. State v. Dunston, No. A-5955-94T4 (Nov. 29, 1995). The Supreme Court denied defendant's petition for certification. 144 N.J. 173 (1996).

Defendant filed a petition for post-conviction relief, which was denied on January 7, 2000. The court subsequently denied defendant's motion for reconsideration on April 6, 2001. On appeal, we affirmed the denial of the petition and motion for reconsideration in a unreported opinion. State v. Dunston, No. 5276-00T4 (July 18, 2002), and the Supreme Court denied defendant's petition for certification. 175 N.J. 80 (2002).

On July 11, 2006, defendant filed what he characterized as a motion to correct an illegal sentence. By letter opinion dated August 14, 2006, the trial court indicated that it was denying defendant's motion. After defendant filed a notice of appeal, the court memorialized this ruling by an order entered on November 15, 2006.

On appeal, defendant presents the following arguments:

I. THE LAW DIVISION COMMITTED STATUTORY ERROR BY INAPPROPRIATELY WEIGHING AND BALANCING THE AGGRAVATING AND MITIGATING FACTORS AND ITS FAILURE IN CONSIDERING THEM APPROPRIATELY WHEN IMPOSING SENTENCING UPON THE DEFENDANT, THEREBY RENDERING AN ILLEGALITY.

A. INAPPROPRIATE AGGRAVATING FACTORS.

B. CONSIDERING MITIGATING FACTORS SUPPORTED BY THE RECORD.

C. MOST LENIENT TERMS COULD HAVE BEEN IMPOSED.

II. THE LAW DIVISION ERRED BY DENYING DEFENDANT'S SENTENCE IS ILLEGAL IN VIOLATION OF BOOKER/FANFAN.

III. THE LAW DIVISION ERRED BY DENYING THAT THE DEFENDANT'S PSYCHOLOGICAL PROFILE IN ITSELF CONSTITUTES A NEGATION AND MITIGATION OF THE OFFENSES AND THE ILLEGALITY OF THE SENTENCES IMPOSED REQUIRES A RECONSIDERATION BY THE COURT, PURSUANT TO STATE V. DALZIEL.

We reject these arguments and affirm the denial of defendant's motion substantially for the reasons set forth in the trial court's letter opinion of August 14, 2006. Defendant's arguments do not warrant any additional discussion.

R. 2:11-3(e)(2). We only note that defendant's argument regarding post traumatic stress disorder is not supported by competent evidence and, like the voluntary intoxication defense he relied upon in support of his petition for post-conviction relief, would not negate the mens rea element of the aggravated manslaughter charge to which he pled guilty.

Affirmed.

20070927

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