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State v. Pennington

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 17, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES D. PENNINGTON, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 93-01-224 and 94-03-432.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2008

Before Judges Graves and Sabatino.

In this post-conviction relief (PCR) appeal, defendant James Pennington appeals from an order dated December 8, 2005, denying his second PCR petition. After reviewing the record and the applicable law, we affirm.

Following a jury trial, defendant was convicted of numerous crimes arising out of four separate criminal episodes. In a published opinion, we affirmed defendant's convictions, but remanded "the sentence of life plus twenty years, the first thirty-five years to be served without parole." State v. Pennington, 301 N.J. Super. 213, 221 (App. Div. 1997). On appeal, the Supreme Court affirmed in part, reversed in part, and remanded the case to the Law Division for resentencing:

We affirm all of defendant's convictions and the sentence of life on one count of kidnapping. We reverse the Appellate Division's holding that the pre-trial plea offer may be considered when determining whether one or more sentences are excessive. We remand the case to the Law Division for reconsideration of the parole bar on the kidnapping sentence, clarification of the consecutive sentences imposed for the two second-degree burglaries, and resentencing on one count of kidnapping and [one count of] burglary.

[State v. Pennington, 154 N.J. 344, 364 (1998).]

When he was resentenced on October 15, 1999, defendant received an extended-term sentence of life in prison with a twenty-five-year period of parole ineligibility as a persistent offender on one kidnapping charge. The sentences on all of defendant's other crimes were imposed concurrent with his life sentence.

On September 28, 2001, the trial court denied defendant's first PCR petition, and on November 18, 2003, in an unpublished opinion, we affirmed the trial court's order. State v. Pennington, No. A-1298-01 (App. Div. Nov. 18, 2003) (slip op. at 5), certif. denied, 179 N.J. 310 (2004). In an unpublished opinion, we considered, but rejected, defendant's ineffective assistance of counsel and "prosecutorial vindictiveness" arguments:

Defendant argues in his brief that he should have been granted an evidentiary hearing on his ineffective-assistance and prosecutorial retaliation arguments. We have carefully considered the record and the briefs, and we are satisfied that there is insufficient merit in defendant's arguments to warrant extended discussion in a written opinion. See R. 2:11-3(e)(2). We affirm, adding only these brief comments.

Defendant's contention that the [superseding] indictment deprived him of due process was rejected on direct appeal and thus is barred. R. 3:22-5. Defendant points to no evidence outside the record that could warrant a relaxation of the procedural bar.

Moreover, defendant's trial attorney actually testified at the post-conviction relief hearing that the late return of the [superseding] indictment, which added kidnapping to the pending charges, did not hinder his trial preparation, since the facts and the evidence were the same as those raised by the original indictment. Indeed, defendant's trial strategy, although unsuccessful, was based almost entirely upon challenging his identification as the perpetrator of these crimes. Evidence of defendant's involvement and guilt in this crime spree was overwhelming.

[Id. at 4.]

On this appeal from the order denying his second PCR petition, defendant raises the following issues:

POINT I THE MISCONDUCT OF TRIAL COUNSEL AND THE STATE DID CREATE A CONFLICT OF INTEREST, PCR COUNSEL FAILED TO ADVANCE HIS CLIENT[']S CONCERN ON THAT ISSUE THUS DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION AND HEARING FOR POST [-]CONVICTION RELIEF DEPRIVING DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW, U.S. CONSTI. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW).

POINT II PCR APPELLATE COUNSEL ON APPEAL FAILED TO RAISE AN ISSUE OF INEFFECTIVE ASSISTANCE OF PCR COUNSEL AS REQUESTED BY HIS CLIENT DEPRIVING DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW, U.S. CONSTI. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW).

POINT III THE JUDGE ERRED BY FAILING TO GRANT GOOD CAUSE ON PROCEDURAL GROUNDS WHERE THE ISSUE BEFORE THE COURT HAS NEVER BEEN RAISED THUS DENYING THE DEFENDANT A SECOND POST [-]CONVICTION RELIEF HEARING DEPRIVING DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW, U.S. CONSTI. AMEND. V, VI, XIV; N.J. CONST. (1947) ART. I, PAR. 1, 9, 10. (NOT RAISED BELOW).

Having reviewed the record, we conclude that these contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief observations.

We previously rejected defendant's claims that his trial counsel was ineffective, R. 3:22-5, and he failed to present a prima facie case that his PCR appellate counsel was ineffective. State v. Preciose, 129 N.J. 451, 463-64 (1992); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987); Moreover, the trial court correctly concluded that defendant failed to demonstrate "good cause" for assigned counsel, pursuant to R. 3:22-6(b).

Affirmed.

20080117

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