On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 94-04-0518.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Fisher and Baxter.
In appealing the denial of his petition for post-conviction relief, defendant would again have us consider whether his trial should have been barred by the Interstate Agreement on Detainers Act (IAD), N.J.S.A. 2A:159A-1 to -6. Because we previously rejected the identical or substantially equivalent argument on direct appeal, we conclude that the matter may not now be revisited. Accordingly, we affirm the order denying defendant's petition for post-conviction relief.
In this matter (sometimes referred to as the "Middlesex County matter"), defendant was charged with seven offenses arising from his attempts to use credit cards belonging to others, namely: third-degree attempted theft by deception (count one), N.J.S.A. 2C:20-4; two counts of third-degree fraudulent use of a credit card (counts two and five), N.J.S.A. 2C:21-6(h); two counts of fourth-degree forgery (counts three and six), N.J.S.A. 2C:21-1(a)(2); and two counts of fourth-degree uttering a forged instrument (counts four and seven), N.J.S.A. 2C:21- 1(a)(3).
Counts two and five were dismissed prior to trial. At the conclusion of the trial, the jury found defendant guilty of counts one, three and four, and not guilty on counts six and seven. The judge merged the convictions on counts three and four into the conviction on count one, and sentenced defendant to a five-year prison term to run consecutively to a federal sentence defendant was then serving, but concurrently with a sentence imposed a month earlier in a Union County matter.
Defendant filed an appeal, seeking reversal of his convictions in this matter as well as his convictions in the Union County matter. We vacated the convictions on counts three and four due to a lack of sufficient evidence. However, we affirmed the conviction on count one and remanded for the entry of an amended judgment of conviction. State v. McGhee, No. A- 928-99T4 (App. Div. July 3, 2001). The Supreme Court denied defendant's petition for certification, 170 N.J. 207 (2001), and the Supreme Court of the United States denied defendant's petition for a writ of certiorari, McGhee v. New Jersey, 537 U.S. 839, 123 S.Ct. 157, 154 L.Ed. 2d 61 (2002).
In October 2003, defendant filed a petition for post- conviction relief, which was denied by the trial court on June 22, 2005. Defendant then filed a timely appeal, raising the following arguments for our consideration:
I. PETITIONER WAS DENIED DUE PROCESS AND FAIR WARNING WHEN THE TRIAL AND APPELLATE COURTS APPLIED AN UNFORESEEABLE RETROACTIVE CONSTRUCTION OF THE [IAD's] ARTICLE VI(a) TO SUSTAIN THE PROSECUTION OF PETITIONER AND AFFIRM HIS CONVICTION.
II. THE STATE'S FAILURE TO DEMONSTRATE A DILIGENT, GOOD-FAITH EFFORT TO TIMELY BRING PETITIONER TO TRIAL IN VIOLATION OF SMITH V. HOOEY, 393 U.S. 374[, 89 S.Ct. 575, 21 L.Ed. 2d 607] (1969), MANDATES VACATION OF THE CONVICTION AND DISMISSAL OF THE INDICTMENT WITH PREJUDICE.
III. PROSECUTOR'S EXPLICIT SCHEDULING AND AGREEMENT FOR TRIAL ON APRIL 7, 1998, BARRED ARGUMENT AND THE COURTS' DE NOVO FINDINGS THAT PETITIONER WAS UNAVAILABLE FOR TRIAL PRIOR TO THAT DATE.
IV. PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE AND PCR ...