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State v. Waller

February 26, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AHMAD WALLER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-03-0879.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 16, 2008

Before Judges Parker and Lyons.

Defendant Ahmad Waller appeals from a denial of his motion to correct an illegal sentence as set forth in the trial court's letter dated November 6, 2006, and a denial of his second petition for post-conviction relief (PCR) as set forth in the trial court's order of January 11, 2007. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. A jury convicted defendant on May 27, 1997, on the following charges in Essex County Grand Jury Indictment No. 96-03-0879: second-degree conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:13-1 (count one); second-degree attempted kidnapping, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:13-1(b)(1) (count two); felony-murder, N.J.S.A. 2C:11-3(a)(3) (count four); murder, N.J.S.A. 2C:11-3(a)(1), (2) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven). Defendant was acquitted of first-degree robbery, N.J.S.A. 2C:15-1 (count three). Although indicted together with Tahir Johnson, defendant was tried alone.

On June 27, 1997, the trial court sentenced defendant on count five to life imprisonment with a thirty-year period of parole ineligibility. On count two, defendant was sentenced to a concurrent ten-year term of incarceration with a five-year period of parole ineligibility. A concurrent five-year term was imposed on count six. Counts one, four, and seven were merged and dismissed, and appropriate penalties were imposed.

We affirmed defendant's convictions and sentence on direct appeal in State v. Waller, No. A-7180-96T4 (App. Div. March 16, 1999). The Supreme Court denied defendant's petition for certification on June 7, 1999. State v. Waller, 161 N.J. 148 (1999).

On March 21, 2000, defendant filed a notice of motion and petition for PCR. On December 7, 2001, the trial court denied defendant's application. On February 22, 2002, a notice of appeal was filed on defendant's behalf. On November 10, 2003, we affirmed the denial of defendant's petition for PCR. State v. Waller, No. A-2951-01T5 (App. Div. Nov. 10, 2003). The Supreme Court denied defendant's petition for certification on March 2, 2004. State v. Waller, 179 N.J. 369 (2004).

On June 21, 2006, defendant filed a motion to correct an illegal sentence. Eventually, on November 6, 2006, the trial court denied defendant's motion to correct an illegal sentence. On July 19, 2006, defendant also filed a motion for PCR. That motion was denied on January 11, 2007, by the trial court. This appeal ensued.

In this appeal, defendant argues:

POINT I

THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT REVIEWING THE ISSUES WHICH WERE OF MERIT UNDER BOTH, THE NEW JERSEY ...


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