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State v. McGill

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 10, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN MCGILL, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. 368-81-M.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Decided: September 19, 2008

Before Judges Stern and Waugh.

Defendant John McGill appeals from the denial of his third petition for post-conviction relief and from the denial of his motion for a new trial. We affirm.

Following a jury trial concluded in 1983, defendant was convicted on a charge of first-degree murder. Defendant was sentenced to a term of life imprisonment subject to a twenty-five year parole ineligibility period. The judgment of conviction was affirmed on direct appeal, State v. McGill, No. A-1910-53T4 (App. Div. June 5, 1986), and the Supreme Court denied defendant's petition for certification. State v. McGill, 105 N.J. 539 (1986). Defendant's first petition for post-conviction relief was filed in August 1989 and denied by order entered on November 1, 1989. We affirmed that denial, State v. McGill, No. A-2341-89T3 (App. Div. Sept. 24, 1990), and the Supreme Court denied certification. State v. McGill, 127 N.J. 323 (1990). Thereafter defendant unsuccessfully sought relief by way of a petition for habeas corpus filed in the federal district court, McGill v. Arvonio, No. 93-2751 (D.N.J. Sept. 21, 1993), and the Third Circuit affirmed the denial, McGill v. Arvonio, No. 93-5645 (3d Cir. Mar. 21, 1994). His second post-conviction petition was filed in August 2000 and denied by order entered in May 2001. We affirmed the denial, State v. McGill, No. A-5755-00T2 (App. Div. Oct. 8, 2002), and the Supreme Court denied certification. State v. McGill, 175 N.J. 550 (2003).

On September 6, 2005, defendant filed his third petition for post-conviction relief, followed by a motion for a new trial on November 7, 2006. The applications were heard together and denied on June 7, 2007 by Judge Paul W. Armstrong. The order was entered on June 18, 2007. Defendant filed his notice of appeal on July 18, 2007.

On this appeal, defendant raises the following issues:

POINT I: THE HONORABLE EDWARD M. COLEMAN, J.S.C. WAS THE PROSECUTOR AT THE DEFENDANT'S CRIMINAL TRIAL NOW, AS A SITTING JUDGE, HE SHOULD NOT HAVE BEEN ASSIGNED TO HEAR THE DEFENDANT'S MOTION FOR A NEW TRIAL

A. ON DEFENDANT'S MOTION FOR A NEW TRIAL, ALL THE NORMAL PROCEDURALS [SIC] WERE IGNORED IN VIOLATION OF THE DEFENDANT'S RIGHT TO DUE PROCESS POINT II: BECAUSE AN EX POST FACTO LAW WAS APPLIED AS AN AGGRAVATING FACTOR, THE DEFENDANT'S SENTENCE BECAME ILLEGAL AND SUBJECT TO CORRECTION

A. THE AGGRAVATING FACTORS FOUND IN N.J.S.A. 2C:44-1(a) WERE ALSO APPLIED RETROACTIVELY TO THE DEFENDANT'S CASE

Having reviewed the record and considered the points raised on appeal, we conclude that they are without merit and affirm essentially for the reasons set forth in Judge Armstrong's comprehensive oral opinion. R. 2:11-3(e)(2).

We add only the following with respect to an issue that was not raised below. Defendant contends that he was denied fair and impartial consideration of his applications because one of the judges involved had been an assistant prosecutor and served as trial counsel during defendant's 1983 trial in this matter.

In support of his argument, defendant points to a letter brief sent to Judge Coleman and relies upon R. 1:12-1(c), which provides that a judge should disqualify himself if he has been an attorney of record in the same matter. Defendant's contention is without merit because the record clearly reflects that the decision on appeal was made by a different judge. Although defendant's applications may have been assigned to Judge Coleman initially, which caused the Office of the Public Defender to address a letter to Judge Coleman, the application itself was argued before and decided by Judge Armstrong.

Affirmed.

20080910

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