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State v. Ellis

October 3, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DELROY ELLIS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-01-0015.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 17, 2007

Before Judges Parrillo and Sabatino.

Defendant Delroy Ellis appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Tried by a jury, defendant was convicted of conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 (count one); robbery, N.J.S.A. 2C:2-6 and 2C:15-1a(1) or 2C:15-1a(2) (count two); burglary, N.J.S.A. 2C:2-6 and 2C:18-2b(1) or 2C:18-2b(2) (count three); criminal restraint, N.J.S.A. 2C:2-6 and 2C:13-2a or 2C:13-2b (count four); aggravated assault, N.J.S.A. 2C:2-6 and 2C:12-1b(4) (count five); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:2-6 and 2C:39-4a (count six); unlawful possession of a weapon, N.J.S.A. 2C:2-6 and 2C:39-5b (count seven); and possession of hollow nose bullets, N.J.S.A. 2C:2-6 and 2C:39-3f (count eight).

The events that led to these convictions occurred on September 6, 1996, when defendant, along with Michael Francis, entered the Passaic County home of Salvatore Aliano, pressed a gun against his head, demanded that he give them money and drugs, ordered him to lie on the basement floor, and taped his hands, feet and mouth with duct tape. After taking Aliano's son's cell phone, which was sitting on a nearby table, the men then began searching the house for valuables. Aliano was subsequently able to free himself and summon the police. Shortly thereafter, officers apprehended defendant in Aliano's backyard. A .40 millimeter semi-automatic handgun was found in defendant's waistband, and Aliano's son's cell phone was also recovered from defendant.

On January 16, 1998, defendant was sentenced to an aggregate term of thirty years in prison with a fifteen-year period of parole ineligibility. A judgment of conviction reflecting this sentence was signed by the trial judge on January 21, 1998, and file-stamped January 22, 1998.

Defendant appealed his conviction and sentence. On July 16, 1999, we affirmed defendant's conviction, but reduced his sentence to twenty years imprisonment with a ten-year period of parole ineligibility. State v. Ellis, No. A-3606-97T4 (App. Div. July 16, 1999) (slip op. at 7-12). On November 24, 1999, defendant's petition for certification to the New Jersey Supreme Court was denied. State v. Ellis, 162 N.J. 489, 489 (1999).

Defendant filed a petition for post-conviction relief in the Superior Court, Law Division, on January 22, 2003,*fn1 exactly five years to the date his judgment of conviction was file-stamped. Defendant's amended verified petition for post- conviction relief, by his assigned counsel, sought relief on the following grounds:

a) Petitioner was denied the effective assistance of counsel at the trial level because his trial attorney failed to conduct an investigation and failed to interview witnesses;

b) Petitioner received the maximum first-degree sentence with the maximum period of parole ineligibility in violation of his federal and state rights to [prove] beyond a reasonable doubt and a jury trial because the aggravating factors were not found by a jury.

After hearing argument, the PCR judge, who was the same judge who presided over defendant's criminal trial and who sentenced him, concluded that the petition was filed beyond the five-year period established by Rule 3:22-12, and that there was no excusable neglect to justify a relaxation of the time bar. Nevertheless, the judge made alternative findings with respect to defendant's substantive arguments, rejecting the ineffective assistance of counsel claims and finding that trial counsel was "extremely prepared and tried an excellent case." Moreover, the judge reasoned that counsel's failure to investigate whether Aliano's son, Pietro, had been a Sheriff's officer or whether the gun found on defendant actually belonged to the son could have had no possible effect on the outcome of the case. As to the sentencing issue, the judge concluded that the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S.Ct. 21, 159 L.Ed. 2d 851 (2004), had no impact on defendant's case because the aggravating factors on which she relied arose from the "nature and circumstances" of the case.

On appeal from the Law Division's March 2, 2005 order denying his PCR petition, defendant now argues for the first time ineffective assistance of PCR counsel and reiterates the contention that his sentence is not in conformance with State v. Natale, 184 ...


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