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State v. Hutchins

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
EVELYN HUTCHINS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 97-05-818 and 97-05-819.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 1, 2008

Before Judges Skillman and Winkelstein.

In 1999, defendant was convicted under two separate indictments of an armed robbery and a second-degree robbery, both in violation of N.J.S.A. 2C:15-1. The trial court sentenced defendant to an extended term of life imprisonment, with twenty-five years of parole ineligibility, for the armed robbery, and a concurrent term of ten years imprisonment, with five years of parole ineligibility, for the second-degree robbery.

On appeal, we affirmed defendant's conviction and sentence in an unreported opinion. State v. Hutchins, No. A-5580-98 (Oct. 2, 2000). The arguments we rejected in that appeal included a challenge to defendant's sentence:

Defendant does not dispute the imposition of an extended term, pursuant to N.J.S.A. 2C:43-7.1. Her only challenge to the sentence is that the maximum term of life imprisonment on the armed robbery conviction is excessive. Defendant, who had a long criminal record, faced sentencing on two serious violent crimes, in which she robbed, terrorized and injured lone women in the elevator of her housing project. The trial judge followed the extended sentencing guidelines and identified four aggravating factors and found no mitigating factors. The judge's imposition of the maximum term of life imprisonment on the armed robbery conviction does not constitute an abuse of discretion, nor does it shock the conscience. State v. O'Donnell, 117 N.J. 210, 215 (1989). In fact ,the judge could have sentenced consecutively rather than concurrently and could even have sentenced consecutively to the sentence defendant was then serving.

The Supreme Court denied defendant's petition for certification. 167 N.J. 629 (2001).

Since we affirmed defendant's conviction and sentence, she has filed three petitions for post-conviction relief. In each of her petitions, defendant has raised claims of ineffective assistance of counsel and the illegality or excessiveness of her sentence. On defendant's appeal from the denial of her first petition for post-conviction relief, one of her arguments was that DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF POST CONVICTION RELIEF COUNSEL FOR FAILURE TO ARGUE THAT THE IMPOSITION OF THE DISCRETIONARY OFFENDER EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW.

We rejected this argument as well as the other arguments defendant presented in that appeal in an unreported opinion, State v. Hutchins, No. A-6554-03 (Nov. 3, 2005), and the Supreme Court denied defendant's petition for certification. 188 N.J. 270 (2006).

This is an appeal from the denial of defendant's third petition for post-conviction relief. She presents three arguments:

I. APPELLANT'S SENTENCE OF A LIFE TERM OF IMPRISONMENT WITH A 25 YEARS PAROLE DISQUALIFICATION FOR EXTENDED TERM PURSUANT TO N.J.S.A. 43:7.1(B) WAS ILLEGAL.

II. TRIAL COURT ABUSED ITS DISCRETION WHEN APPLYING DUNBAR STANDARD TO DETERMINE THE IMPOSITION OF EXTENDED TERM VIOLATING PETITIONER'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO TRIAL BY JURY, DUE PROCESS AND EX POST FACTO LAW AND U.S. CONST. AMENDS. VI, XIV, N.J. CONST., ART. I AND THE CONVICTION MUST BE VACATED.

III. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE SHE WAS PREJUDICED THEREBY, COURT SHOULD GRANT HER PETITION OF POST CONVICTION RELIEF, AND BECAUSE THE APPELLANT PRESENTED ENOUGH PROOF FOR A PRIMA FACIE CASE SHOWING THAT SHE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HER AN EVIDENTIARY HEARING ON THIS ISSUE.

Defendant's third petition was not filed until August 3, 2007, which was more than eight years after her convictions on April 12, 1999. Rule 3:22-12(a) requires a petition for post- conviction relief to be filed within five years of the judgment of conviction unless the petition seeks to correct an illegal sentence or defendant can show "excusable neglect." Defendant's argument that her sentence is illegal is clearly without merit, R. 2:11-3(e)(2), and defendant has not shown excusable neglect in failing to file this petition sooner. In fact, defendant filed two prior petitions that presented substantially the same arguments as her third petition. The arguments that defendant seeks to pursue in this appeal are simply a rehash of arguments that the trial court and this court have already rejected.

Affirmed.

20080718

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