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State v. Sheehan

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 7, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID J. SHEEHAN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 86-08-1670.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2008

Before Judges Winkelstein and LeWinn.

Defendant, David J. Sheehan, appeals from the Law Division's December 14, 2006 order denying his petition for post-conviction relief. We affirm.

Arrested on July 31, 1986, defendant was charged with a series of crimes arising out of an attempted robbery of a post office in Pleasantville on July 21, 1986. An Atlantic County grand jury returned an indictment against him on August 28, 1986, charging him with two counts of first-degree armed robbery, (counts one and four); two counts of fourth-degree assault, (counts two and five); two counts of second-degree possession of a weapon, a handgun, for an unlawful purpose, (counts three and six); one count of third-degree terroristic threats, (count seven); one count of third-degree unlawful possession of a weapon, a handgun, (count eight); one count of fourth-degree possession of a prohibited weapon, a defaced handgun, (count nine); and one count of fourth-degree possession of a weapon, a handgun, by certain persons (count ten). A jury convicted defendant of counts one through nine, and the court convicted him of count ten following the jury's verdict.

After granting the State's motion to have defendant sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-3a, the court merged counts two, three, five, six, seven and nine into counts one and four, and sentenced defendant to an extended custodial life term with a twenty-five year period of parole ineligibility on count one; a consecutive twenty-year prison term, with a ten-year period of parole ineligibility, on count four; a consecutive five-year prison term on count eight; and, on count ten, a concurrent eighteen-month prison term.

On appeal, we affirmed defendant's conviction, but on three separate occasions remanded to the trial judge to provide an analysis of the reasons, pursuant to State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), for imposing consecutive sentences. Following each remand, the court reimposed the same sentences. The final judgment of conviction in the appendix on appeal is dated May 10, 1990. Although the trial court's final resentencing letter is dated December 20, 1990, we have been unable to determine if a new judgment of conviction was entered at or after that date.

On March 9, 2003, defendant filed a petition for post-conviction relief. His argument in his brief, and at oral argument on November 30, 2006, where he was represented by counsel, was that his extended prison term was illegal. He has argued that to be subject to an extended term pursuant to N.J.S.A. 2C:44-3, he must have been convicted of crimes on two separate occasions, both occurring within ten years of the date of the crime for which he was being sentenced. He asserts that in imposing an extended term, the trial judge relied on a nonexistent 1982 conviction for burglary. Consequently, defendant argues that the criteria for an extended term under N.J.S.A. 2C:44-3a have not been met, and his extended term sentence should be vacated.

At oral argument on November 30, 2006, Judge Garofolo, who was not the trial judge, rejected defendant's arguments. The trial court found that this court had affirmed defendant's sentence, and that defendant's PCR application was out of time.

The trial judge supplemented his oral decision in a letter dated November 30, 2006. In pertinent part, the letter states the following:

Upon further review, it appears defendant was properly sentenced pursuant to N.J.S.A. 2C:44-3 as a persistent offender. According to N.J.S.A. 2C:44-3, a defendant may be sentenced to an extended term of imprisonment if he is over 21 years of age at the time of the present offense, and has been previously convicted of two separate crimes on two separate occasions when defendant was at least 18 years of age, the latest of which occurred within 10 years of the present offense.

Defendant was 37 years old at the time of the present offense. Less than ten years prior to the immediate Burglary offense, defendant was convicted in April of 1977 in California of Kidnapping. Prior to the Kidnapping conviction, defendant was convicted in March of 1976 in Atlantic County for Unlawful Conversion, in October of 1970 in Atlantic County for Robbery, and in September of 1970 in Atlantic County for Conspiracy. Defendant was over 18 at the time of conviction for all of the above mentioned offenses.

Accordingly, defendant's sentence contains no errors and he was properly sentenced to an extended term as a persistent offender.

On appeal, defendant raises the following points:

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT'S PETITION WAS PROCEDURALLY BARRED.

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT'S SENTENCE WAS NOT ILLEGAL.

POINT THREE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT FOUR

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT FIVE

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INFFECTIVENESS OF COUNSEL.

POINT SIX

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW).

We have carefully reviewed the record in light of defendant's contentions and the applicable law. We affirm substantially for the reasons expressed by Judge Garofolo in his November 30, 2006 oral decision and his supplemental written decision.

Defendant has failed to establish a prima facie case of ineffective assistance of counsel, in that he has not shown that either trial counsel's or appellate counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Defendant's sentence was not illegal or otherwise an abuse of discretion.

A court may sentence a defendant to an extended term if the defendant is a "persistent offender," which is defined as: a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced. [N.J.S.A. 2C:44-3a.]

Here, even without the 1982 burglary offense, which was downgraded to a municipal court offense and was therefore improperly considered by the trial judge, defendant qualified for an extended term. Defendant was born on March 22, 1949, and thus he satisfies the age requirements under the statute. The offense for which he was convicted occurred in July 1986. He was convicted of kidnapping in October 1977, within ten years of the subject conviction, and had been convicted of a second crime, criminal conversion, in 1976. In sum, defendant's age, his prior convictions, and his last conviction having occurred within ten years of the 1986 offenses, meet the criteria for an extended term sentence.

Furthermore, in light of the substantial delay between defendant's final judgment of conviction in 1990 and his PCR application in 2003, and because this court has previously affirmed his sentence, the issues defendant has raised were either raised or could have been raised in prior proceedings, or have otherwise been raised out of time. R. 3:22-4; R. 3:22-5; R. 3:22-12(a).

Affirmed.

20080507

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