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State v. McCallum

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERT J. MCCALLUM, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 93-12-1844-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 17, 2008

Before Judges Rodríguez and Payne.

Defendant, Robert J. McCallum, appeals pro se from the denial of his second petition for post-conviction relief (PCR). We affirm.

In 1995, following a jury trial, defendant Robert J. McCallum was convicted of purposeful murder, N.J.S.A. 2C:11-3a(1); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Following merger, Judge George Parsons imposed concurrent terms aggregating life imprisonment with a thirty-year period of parole ineligibility, as well as mandatory penalties, fees and assessments.

We affirmed on direct appeal, but vacated the SNSF assessment. State v. McCallum, No. A-6507-94T4 (App. Div. Sept. 25, 1997), certif. denied, 153 N.J. 404 (1998). Defendant filed a PCR petition, while represented by counsel. Judge William C. Meehan denied the PCR. Defendant appealed from the denial. We affirmed. State v. McCallum, No. A-5276-99T4 (App. Div. Oct. 15, 2001), certif. denied, 172 N.J. 180 (2002).

Defendant filed a petition for habeas corpus in the federal district court. This petition was denied. McCallum v. Moore, No. 03-2529 (D.N.J. Dec. 7, 2005). The Third Circuit Court of Appeals denied defendant's request for a certificate of appealability.

Twelve years after the conviction, defendant filed pro se a second PCR petition. Following oral argument, Judge Meehan denied the petition as time-barred and without merit. These are the relevant facts. On May 18, 1993, the superintendent of Janeze Dennis's Hackensack apartment heard a moan coming from the parking lot area. From a window, she observed Dennis covered with blood and called the police. Hackensack Police Sergeant William Osinski found Dennis in front of the apartment complex, with a gun shot wound to the left side of her neck. Police officers entered Dennis's apartment and found the body of Reynard Dunbar. Dennis told the police that defendant, her cousin, had shot Dunbar.

The State produced evidence that Dennis and Dunbar were drug dealers and had a long-time relationship. During the year prior to the shooting, more than $10,000 had been wired to Dennis from Dunbar's apartment in Syracuse, New York.

Defendant was arrested and given his Miranda*fn1 rights. He denied any involvement in the shooting of Dunbar or Dennis. Later, in a sworn statement, defendant said he had known Dunbar for some time and assumed that Dunbar and Dennis had a romantic relationship. According to defendant, on the day of the shooting, he entered Dennis's apartment and was told by Dennis to leave. He was then confronted by Dunbar, who was armed with a handgun. Dunbar grabbed Dennis and hit defendant in the head.

A scuffle ensued during which the gun was fired twice, the second shot hitting Dunbar in the face. Dennis was also hit by a bullet. Defendant went through Dunbar's pockets, took $30 and left the apartment. Before leaving, he told Dennis to call an ambulance. Defendant admitted that he threw the handgun into the Hudson River from the George Washington Bridge.

In a third statement to police, defendant disavowed any involvement in the incident. He alleged that Dunbar had been shot by Riccardo Gunn, a drug dealer.

The State's theory was that defendant and Dennis had planned Dunbar's murder by luring him to Dennis's apartment and killing him. The prosecutor elicited testimony from Sunandan B. Singh, M.D., Chief Bergen County Medical Examiner, that Dunbar had been shot twice; once in the base of the skull and once in the back of the neck. At the scene of the shooting, Dr. Singh saw a towel next to Dunbar's head. Without objection, he stated that there were multiple holes in the towel with soot around some of the holes. He opined that the towel was employed during the shooting and placed over the muzzle of the gun. The gun was then pressed against the victim's head and discharged.

Defendant now appeals, contending:

I. THE COURT BELOW ERRED BY FAILING TO GRANT DEFENDANT'S REQUEST IN CONNECTION WITH HIS MOTION TO CORRECT AN ILLEGAL SENTENCE BECAUSE THE RECORD DOES NOT SPECIFY WHICH CONVICTION THE LIFE IMPRISONMENT TERM, WITH A PERIOD OF MANDATORY THIRTY-YEAR PAROLE DISQUALIFIER HAD APPLIED TO, THEREFORE THE ENTIRE SENTENCE SHOULD BE VACATED SINCE IT VIOLATED HIS DUE PROCESS RIGHT UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

II. THE COURT BELOW SHOULD HAVE GRANTED DEFENDANT'S MOTION TO CORRECT HIS ILLEGAL SENTENCE IN CONNECTION WITH HIS ARGUMENT THAT THE UTILIZATION OF AN AGGRAVATING FACTOR UNRELATED TO HIS PRIOR RECORD REQUIRES REMAND FOR RESENTENCING IN ACCORDANCE WITH STATE V. NATALE, THUS, THE COURT'S FAILURE TO DO SO VIOLATE HIS RIGHT TO DUE PROCESS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

A. Because The Court Below Ruled That Defendant's Motion To Correct An Illegal Sentence Pursuant To R. 3:22-12 Was Not Time-Barred, There Is No Reason To Argue Against The State's Contention To That Effect.

III. DEFENDANT'S REQUEST SHOULD HAVE BEEN GRANTED IN CONNECTION WITH HIS ARGUMENTS THAT THE TRIAL COURT JUDGE USED IMPERMISSIBLE AGGRAVATING FACTORS TO SENTENCE HIM ON HIS MURDER CONVICTION WITHOUT SUBMITTING THOSE FACTS TO THE JURY TO BE PROVEN BEYOND A REASONABLE DOUBT OR WITHOUT USING FACTS FROM A PRIOR CONVICTION, THEREFORE THE SENTENCE HE RECEIVED SHOULD BE VACATED BECAUSE HIS RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW WAS VIOLATED UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

We are satisfied that defendant has failed to demonstrate an illegal sentence. His claims are time-barred (R. 3:22-12(a)), or procedurally barred (R. 3:22-3, -4 and -5).

Furthermore, if we were to consider the merits, the petition also fails.

The first claim is that "the record does not specify which conviction the life imprisonment term, with a period of mandatory thirty-year parole disqualifier had applied to . . . ." However, the judgment of conviction makes it clear that the life term with a minimum thirty-year term applies to the murder conviction. The second claim is that the sentence violates the mandate of State v. Natale II, 184 N.J. 458 (2005). However, this appeal was not in the pipeline when Natale II was decided. Defendant filed this notice of appeal on February 21, 2008, long after Natale II was decided. Moreover, as the State points out, because murder has no presumptive term, the Natale II constitutional problem does not exist in defendant's case.

Thus, having considered defendant's contentions, we determine that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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