November 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALONZO JENKINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-04-1670.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2008
Before Judges Wefing and Yannotti.
Defendant Alonzo Jenkins appeals from an order dated July 17, 2007, which denied his motion to "correct an illegal sentence." We affirm.
Defendant was charged under Essex County Indictment No. 97- 04-1670 with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five). Defendant was tried to a jury, which found him not guilty on count four, guilty of the charges in counts one, two and five, and guilty on count three of the lesser offense of third-degree aggravated assault.
Defendant was sentenced on November 12, 1997. The judge merged counts one, three and five with count two and granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The judge imposed a forty-five year term of incarceration with a fifteen- year period of parole ineligibility. The judge also imposed a $50 Violent Crimes Compensation Board penalty, as well as a $75 Safe Neighborhood Service Fund assessment. Defendant appealed and raised the following issues for our consideration:
THE PROSECUTOR REPEATEDLY ELICITED INADMISSIBLE HEARSAY THROUGH THE TESIMONY OF THE INVESTIGATING OFFICER (Substantially raised below).
DEFENDANT'S CONVICTIONS WERE CONTRARY TO THE WEIGHT OF THE EVIDENCE.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We rejected these arguments and affirmed. State v. Jenkins, No. A-4150-97T4 (App. Div. Nov. 3, 1999). Defendant filed a petition for certification with the Supreme Court seeking review of our judgment. The petition was denied. State v. Jenkins, 165 N.J. 133 (2000).
On July 21, 2000, defendant filed a petition for post- conviction relief (PCR). On October 26, 2001, the trial court entered an order denying the petition. Defendant appealed from that order. Through counsel, defendant raised the following issues:
THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
PROSECUTORIAL MISCONDUCT ENTITLED DEFENDANT TO A VACATION OF HIS CONVICTION AND SENTENCE.
DEFENDANT WAS DEPRIVED [OF] THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL.
In a supplemental pro se brief, defendant raised the following additional arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WHERE, AS HERE, IT IS CLEAR THAT IN VIOLATION OF DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND A FAIR TRIAL, THE STATE WITHHELD FROM DEFENDANT MATERIAL EVIDENCE AND STATEMENTS THAT DIRECTLY EXCULPATED DEFENDANT AND IMPLICATED OTHERS IN AN OBSTRUCTION OF JUSTICE.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WHERE, AS HERE, DEFENDANT'S TRIAL ATTORNEY FAILED TO INVESTIGATE OBVIOUS SIGNIFICANT AVENUES OF DEFENSE, INCLUDING INTERVIEWING AND CALLING OF WITNESSES AND OTHERS WHO WOULD HAVE DIRECTLY EXCLUPATED DEFENDANT, UTTERLY DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW, AND A FAIR TRIAL.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WHERE, AS HERE, THE EVIDENCE PRESENTED TO THE TRIAL COURT ESTABLISHES THAT DEFENDANT WAS UNFAIRLY CONVICTED IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS OF LAW, AND A FAIR HEARING.
THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS FIRST POST CONVICTION RELIEF PETITION, AND DUE PROCESS OF LAW, EQUAL PROTECTION UNDER THE LAW AND A FAIR HEARING, WHEN COUNSEL REFUSED TO CONTACT OR CONSULT WITH THE DEFENDANT, COUNSEL DID NOT INVESTIGATE THE DEFENDANT'S CLAIM BY NOT INTERVIEWING AND CALLING OF WITNESSES, DID NOT AMEND THE DEFENDANT'S PETITION, COUNSEL DID NOT SUBMIT A REPLY BRIEF TO THE PROSECUTION['S] BRIEF, COUNSEL HAD SOLELY RELIED ON THE DEFENDANT'S POORLY ARTICULATED AND INADEQUATE 65-PAGE PRO SE CONTENTIONS.
We rejected these contentions and affirmed. State v. Jenkins, No. A-1284-01T4 (App. Div. Jan. 8, 2003). Defendant filed a petition for certification with the Supreme Court. The Court denied the petition. State v. Jenkins, 176 N.J. 280 (2003). In April 2003, defendant filed a second petition for PCR. On May 20, 2003, the trial court entered an order denying the petition. Defendant filed an appeal, in which he argued that his extended term sentence was illegal because it was based on "a false judgment of conviction;" his juvenile record was improperly used by the trial court; and the sentence was based "upon false information contained in the presentence report." We concluded that defendant's arguments were without merit. State v. Jenkins, No. A-5851-02T1 (App. Div. Feb. 9, 2004). On September 24, 2004, defendant filed his third PCR petition. The trial court entered an order on May 2, 2005 denying the petition. Defendant appealed and raised the following arguments:
THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW[,] TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL ON THE DEFENDANT'S FIRST PETITION FOR POST-CONVICTION RELIEF, UN-EXHAUSTED CLAIM.
THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW, TO HAVE EVERY ELEMENT OF THE OFFENSE, INCLUDING THE LEGAL DEFINITION OF THE CRIMINAL STATUTE OR CODE PRESENTED TO THE GRAND JURY, BASED UPON SUFFICIENT CREDITABLE INFORMATION AND EVIDENCE FOR THE FINDING OF PROBABLE CAUSE WAS NOT FOUND BY THE GRAND JURY.
THE TRIAL COURT VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW AND THE RIGHT TO HAVE A JURY TRIAL WHEN THE TRIAL COURT SENTENCED DEFENDANT TO A DISCRETIONARY EXTENDED TERM OF IMPRISONMENT TO 45 YEAR[S] WITH A 15 YEAR PAROLE INELIGIBILITY, [BASED] UPON FACTS NEITHER ADMITTED BY THE DEFENDANT NOR FOUND BY THE JURY BEYOND A REASONABLE DOUBT.
We affirmed the denial of defendant's third PCR petition. State v. Jenkins, No. A-4862-04T1 (App. Div. Apr. 18, 2006). Defendant filed a petition for certification with the Supreme Court seeking review of our judgment. The petition was denied. State v. Jenkins, 188 N.J. 270 (2006).
Defendant then filed what he called a "motion to correct an illegal sentence." Judge Thomas Vena filed an order dated July 17, 2007 denying the motion. This appeal followed.
Defendant raises the following contentions for our consideration:
THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW, WHEN THE TRIAL COURT SENTENCE[D] THE DEFENDANT TO [A] DISCRETIONARY EXTENDED TERM OF IMPRISONMENT. THE STATE DID NOT MEET ITS BURDEN OF PROOF, THAT THE DEFENDANT IS A PERSISTENT OFFENDER (Raised Below).
We are convinced that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm substantially for the reasons stated by Judge Vena in his letter opinion dated July 17, 2007. We add the following brief comments.
Defendant contends that that he did not qualify for sentencing as a persistent offender pursuant to N.J.S.A. 2C:44- 3. We note, however, that in our February 9, 2004 opinion, which was defendant's appeal from the order denying defendant's second PCR petition, we expressly held that the record fully supported the trial judge's conclusion that defendant was eligible for extended-term sentencing. Defendant is therefore precluded from re-litigating the question of whether he was eligible for extended-term sentencing.
Even if defendant is not barred from re-litigating the issue, his argument that he did not qualify for extended-term sentencing is entirely without merit. The relevant statute provides that a defendant may be sentenced to an extended term if
[t]he defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is 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.
Defendant asserts that he did not qualify for sentencing under this statute because he was being sentenced for an offense that was committed on September 15, 1996. He contends that the last offense was committed more than ten years before that date. However, as Judge Vena pointed out in his letter opinion, the critical date here is "the latest in time" of the offense and "the date of defendant's last release from confinement." Ibid. Judge Vena noted that defendant was released from prison on February 6, 1995, and the offenses for which defendant was being sentenced were committed within ten years of that date. Defendant asserts that Judge Vena erred in finding that February 6, 1995 was his release date. Defendant says that he was paroled on June 14, 1994.
While the appeal was pending, we granted defendant's motion to supplement the record with a certificate of parole. The certificate indicates that defendant was paroled on June 14, 1994, arrested on a parole violation on February 6, 1995, and re-paroled on June 15, 1995.*fn1 It would appear therefore that defendant's final release date was not February 6, 1995, but rather June 15, 1995. However, even if we considered the June 14, 1994 parole date as defendant's final release date, that date would still be within the ten-year period prescribed by N.J.S.A. 2C:44-3a.