On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 87-10-1150.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and Baxter.
Defendant Angelo Champion appeals from a trial court order dated May 2, 2007, denying as untimely his third petition for post-conviction relief (PCR).
Defendant was convicted on July 22, 1988, of felony murder, N.J.S.A. 2C:11-3a(3), armed robbery, N.J.S.A. 2C:15-1, and related weapons offenses. After merger, the trial judge imposed an aggregate sentence of life in prison with thirty years of parole ineligibility. We affirmed the conviction on direct appeal, State v. Champion, Docket No. A-130-88 (App. Div. Apr. 25, 1991), certif. denied, 127 N.J. 552 (1991), rejecting as meritless defendant's claim of ineffective assistance of counsel. Defendant's first PCR petition was denied on April 5, 1993. We affirmed and the Supreme Court denied certification. State v. Champion, 141 N.J. 98 (1995). Defendant then filed a petition for habeas corpus in United States District Court, again claiming ineffective assistance. This petition was likewise denied. Champion v. Morton, Civil Action No. 79-2140 (D.N.J. 1997).
Defendant next filed a second PCR petition in State court, which was denied on February 15, 2002. However, on appeal we remanded the second PCR to the trial court to determine whether State v. Rue, 175 N.J. 1 (2002), which concerned the extent of PCR counsel's obligation to raise issues, should be applied retroactively. The matter was decided unfavorably to defendant on remand and we affirmed that determination on March 9, 2007.
State v. Champion, Docket No. A-0737-05 (App. Div. Mar. 9, 2007).
Defendant filed this, his third PCR on April 20, 2007, almost nineteen years after the date of his conviction. The essence of his claim is that the trial court improperly weighed the aggravating and mitigating factors in calculating his sentence and that the sentence was excessive and disproportionate to sentences imposed on others for the same crimes. In a written opinion dated May 2, 2007, Judge Schultz denied the PCR as untimely under Rule 3:22-12 because it was not filed within five years after the judgment of conviction. The judge also reasoned that defendant provided "no basis for [the] extraordinary delay" in filing the PCR. He concluded that "any ground for relief not raised in a prior proceeding under the PCR rules" or on direct appeal "is barred unless the relief not previously asserted could not reasonably have been raised" in those prior proceedings. He found no evidence that the claim could not have been raised in earlier proceedings and thus concluded that the petition should be denied under Rule 3:22-4 as well.
On this appeal, defendant seeks to characterize his PCR as a motion to correct an illegal sentence, so as to bring his petition within the ambit of Rule 3:22-12, which provides that a petition to correct an illegal sentence may be filed at any time. However, as in the trial court, defendant does not contend that the sentence is illegal in the sense that it is beyond the term permitted by statute. Rather, he contends that the sentence was excessive because the sentencing judge "relied on erroneous aggravating factors which were not personal to defendant" and the judge mistakenly believed he was "bound" to impose a term of life with a thirty-year parole bar. He also contends that the "imposition of a 30-Life term, as opposed to 30 years without parole, represents an unconstitutional disparity."
Having reviewed the record presented to us, we conclude that all of defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Schultz's cogent opinion. We add only the following comments.
We agree with Judge Shultz that defendant's PCR is untimely and is thus barred by the five-year time limit of Rule 3:22-12. We find no basis to waive the bar of the Rule. See State v. Cummings, 321 N.J Super. 154, 166-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). A sentence of life in prison with thirty years of parole ineligibility is a legal sentence for the crime of which defendant was convicted. N.J.S.A. 2C:11-3b. Defendant's claim that the sentence was excessive or disproportionate does not bring his petition within the exception in Rule 3:22-12 for motions to correct an illegal sentence. See State v. Ellis, 346 N.J. Super. 583, 596 (App. Div.), aff'd o.b., 174 N.J. 535 (2002). Because defendant could have challenged the length of his sentence on direct appeal, he cannot raise the issue now, in a PCR petition. See State v. Clark, 65 N.J. 426, 436-37 (1974); R. 3:22-4. Finally, with respect to defendant's claim that the sentence was somehow ...