On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 93-01-224 and 94-03-432.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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On September 28, 2001, the trial court denied defendant's first PCR petition, and on November 18, 2003, in an unpublished opinion, we affirmed the trial court's order.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 In an unpublished opinion, we considered, but rejected, defendant's ineffective assistance of counsel and "prosecutorial vindictiveness" arguments: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 ...