February 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AHMAD WALLER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-03-0879.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
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 STATE AND THE UNITED STATES CONSTITUTION.
THE COURT ERRED IN DENYING APPELLANT'S PETITION FOR POST - CONVICTION RELIEF BECAUSE THE DEFENDANT'S CLAIM THAT HE RECIEVED [SIC] INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR DENIAL OF HIS 1ST. POST CONVICTION APPEAL HAS MERIT BECAUSE COUNSEL FAILED TO RAISE OBVIOUS ISSUES CONCERNING VIOLATIONS OF HIS CONSTITUTIONAL RIGHTS BEING MENTIONED, BUT NOT ARGUED BY PCR COUNSEL.
A. APPELLATE COUNSEL FAILED TO RAISE ISSUES INVOLVING POST CONVICTION COUNSEL'S FAILURE TO PUT FORTH A CREDIBLE EFFORT IN THE INTEREST OF THE DEFENDANT.
B. POST CONVICTION COUNSEL FAILED TO PROVIDE AN ARGUMENT FOR THE CONTENTION THAT THE TRIAL JUDGE ALLOWED PROSECUTOR TO MAKE A SUBSTANCIAL [SIC] AMENDMENT TO THE INDICTMENT AFTER THE PRESENTMENT BY THE GRAND JURY.
C. THE STATE'S LATE AMENDMENT WAS BAD TIMING AND PREJUDICIAL TO THE DEFENDANT, AND CONTRARY TO THE GRAND JURY'S INDICTMENT.
THE TRIAL COURT ERRED IN THE JURY INSTRUCTIONS WHICH LEAD THE JURY TO FIND THE DEFENDANT GUILTY OF FELONY MURDER BASED ON A DIFFERENT OFFENSE FROM THE SPECIFIC OFFENSE INITIALLY CHARGED TO UNDERLIE THE MURDER. In his supplemental brief, defendant argues:
THE TRIAL COURT ERRED IN ALLOWING THE STATE TO MAKE A SUBSTANTIAL AMENDMENT TO THE INDICTMENT, BY INTRODUCING ATTEMPTED KIDNAP AS ANOTHER UNDERLYING PREDICATE FELONY AFTER FINDING THE INITIAL UNDERLYING FELONY ROBBERY TO BE WEAK. IN VIOLATION OF DUE PROCESS/EQUAL PROTECTION UNDER THE 5TH & 14TH AMENDMENT TO THE NEW JERSEY STATE CONSTITUTION. ART. 1 PAR. 1, 8.
DEFENDANT ASSERTS THAT THE RIGHT TO BE PROTECTED BY DOUBLE JEOPARDY CLAUSE/EQUAL PROTECTION OF THE LAW AND DUE PROCESS AND RIGHT TO FAIR TRIAL GUARANTEED BY THE FIFTH, SIXTH, NINETH [SIC] AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1, 8, 11, AND 21 OF THE NEW JERSEY STATE CONSTITUTION WAS VIOLATED WHEN BEING CHARGED AND CONVICTED TWICE FOR THE SAME OFFENSE.
We note at the outset that defendant's pro se motion to correct an illegal sentence and his petition for PCR in large measure make many of the same arguments. His essential points are that it was impermissible to amend the indictment with respect to the predicate offense in the felony murder count and that given the various counts in the indictment arising out of the one criminal episode, he was unfairly subjected to double jeopardy. He also argues throughout that he had ineffective counsel on his PCR appeal, that the jury instructions regarding felony murder were inappropriate, and that the issue of his mental illness was not appropriately raised with respect to the admissibility of his confession.
In the first instance, it appears that all of defendant's PCR claims, except for the ineffective assistance of counsel on his PCR appeal, would appear to be time-barred pursuant to Rule 3:22-12(a).*fn1 Defendant's conviction is well beyond the five-year period of the rule and it does not appear that excusable neglect has been shown. See State v. Mitchell, 126 N.J. 565, 575-77 (1992).
It also appears that defendant's PCR petition is procedurally barred by virtue of Rule 3:22-4. This rule bars relief with respect to any grounds that could have been raised in a prior proceeding under Rule 3:22, unless the trial court finds that the grounds for relief not previously asserted could not have been reasonably raised in a prior proceeding, that enforcement of the procedural bar would result in fundamental injustice, or that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey. Our careful review indicates that, except for defendant's claim of ineffective PCR appellate counsel, his claims for relief could reasonably have been raised earlier, enforcement does not result in a fundamental injustice, nor would a denial of relief be contrary to the Constitution of either the United States or our State.
However, if we turn to the underlying merits of defendant's essential arguments, we find that the trial court did not err in allowing the State to amend count four of the indictment, felony murder, to include attempted kidnapping as a predicate offense. Such action was in accordance with Rule 3:7-4 and is supported by our opinion in State v. Walker, 322 N.J. Super. 535 (App. Div.), certif. denied, 162 N.J. 487 (1999).
Defendant's argument that charging him with multiple counts emanating from the same incident resulted in double jeopardy is without merit. N.J.S.A. 2C:1-8(a) provides that "[w]hen the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense." The statute only prohibits conviction for multiple offenses when one offense is included in the other; one offense consists only of a conspiracy or other form of preparation to commit the other; conviction of one offense is inconsistent with findings of fact that are required to establish the commission of the offenses; or that the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.
N.J.S.A. 2C:1-8(a). In this case, the trial court, upon review of the verdict, appropriately merged and dismissed defendant's convictions for conspiracy to commit kidnapping, felony murder, and possession of a weapon for unlawful purpose.
Defendant's argument that his attorney on the appeal from the denial of his first petition for PCR provided ineffective assistance of counsel also lacks merit. We apply a two-prong test to identify ineffective assistance of counsel. Defendant must first show that counsel's performance was so inept and contained errors of such magnitude that defendant effectively did not receive the counsel guaranteed to him by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Defendant must also show a reasonable probability that, but for counsel's unprofessional errors, the results of the proceedings would have been different. Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93. In our thorough review of the submissions, we find nothing to indicate that counsel's performance was other than professional. Nor do we find, even if counsel had raised each of the points in the manner and form suggested by defendant, that the outcome of the PCR proceeding would have been different.
As to the other issues raised by defendant which we have not specifically addressed, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm the denial of defendant's motion to correct an illegal sentence and the denial of his petition for PCR.