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State v. Ingram

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 9, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DARIUS INGRAM, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 96-05-0440.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 21, 2009

Before Judges Wefing, Parker and Yannotti.

Defendant Darius Ingram appeals from an order entered on August 21, 2007, which denied his motion to vacate an allegedly illegal sentence. We affirm.

Defendant was charged under Burlington County Indictment No. 96-05-0440 with second-degree conspiracy, N.J.S.A. 2C:5-2; first-degree robbery, N.J.S.A. 2C:15-1a(1); second-degree eluding, N.J.S.A. 2C:29-2b; fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(1); fourth-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a); and second-degree aggravated assault, N.J.S.A. 2C:12-1b(6). Defendant was tried to a jury, which found him guilty of second-degree conspiracy, first-degree robbery and second-degree eluding. He was acquitted of resisting arrest and two counts of aggravated assault.

The State filed a motion seeking to have defendant sentenced under the "Persistent Offender Accountability Act," N.J.S.A. 2C:43-7.1a, which is commonly known as the "Three Strikes Law." The court granted the motion, finding that defendant qualified for sentencing under N.J.S.A. 2C:43-7.1a because he had been previously convicted of first-degree robbery on two prior occasions. Defendant pled guilty to first-degree robbery, as charged in Essex County Indictment No. 90-05-2563, and had been sentenced to a seven-year term of incarceration. Defendant also pled guilty to first-degree robbery, as charged in Essex County Indictment No. 91-01-0186, and had been sentenced to twelve years of incarceration.

The court therefore merged the conspiracy conviction with the conviction for first-degree robbery, and sentenced defendant to imprisonment for life without parole. In addition, the court imposed a concurrent ten-year term of imprisonment for the second-degree eluding conviction. Defendant appealed his convictions and the sentences imposed. We affirmed. State v. Ingram, No. A-841-97 (App. Div. Oct. 26, 1999). Defendant's petition for certification was denied. State v. Ingram, 163 N.J. 78 (2000).

Defendant thereafter filed his first petition for post-conviction relief (PCR), which was denied by order entered by the trial court on October 5, 2000. We affirmed the trial court's order. State v. Ingram, No. A-1733-00 (App. Div. March 25, 2002). The Supreme Court denied defendant's petition for certification. State v. Ingram, 174 N.J. 42 (2002).

On January 24, 2003 defendant filed a motion in Essex County to vacate his plea to first-degree robbery, as charged in Essex County Indictment No. 91-01-0186, and to correct the allegedly illegal sentence imposed as a result of that plea. Defendant argued, among other things, that, when he entered his plea, he had not provided an adequate factual basis to support a conviction of first-degree robbery. Defendant also argued that he was denied the effective assistance of counsel when he entered the plea.

The trial court rejected defendant's contentions and entered an order dated January 24, 2003, denying his motion. Defendant appealed and the appeal was heard on our Excessive Sentencing Calendar. We entered an order on July 8, 2003, which affirmed the order denying defendant's motions but stated that it was "without prejudice to [defendant's] right to file a petition for post conviction relief."

On March 23, 2005 defendant filed a PCR petition in Essex County stating that his plea to first-degree robbery, as charged in Essex County Indictment No. 91-01-0186, was in violation of his due process rights. In addition, defendant filed a motion to correct an illegal sentence. On November 18, 2005, the trial court filed a written opinion in which it concluded that defendant's contentions were procedurally barred because they had either not been raised in a timely manner, had been previously adjudicated on the merits, or could have been raised in defendant's direct appeal.

The trial court in Essex County nevertheless considered defendant's claims on the merits. The court found that defendant provided an adequate factual basis for his plea to the charge of first-degree robbery and had not been denied the effective assistance of counsel. The Essex County court entered an order dated November 18, 2005, denying defendant's motions and his petition for PCR. Defendant appealed.

While defendant's appeal from the November 18, 2005 order entered in Essex County was pending, he filed a motion in Burlington County, which he called a motion to correct an "illegal" sentence. Defendant asserted that the "three strikes" sentence imposed following his conviction of first-degree robbery in Burlington County was "illegal" because he did not provide an adequate factual basis for the plea to first-degree robbery as charged in Essex County Indictment No. 91-01-0186.

The trial court heard oral argument on the motion on January 26, 2007. The court filed a written opinion dated August 21, 2007, addressing the motion. In that opinion, the court noted that defendant had previously sought to set aside his plea to first-degree robbery, as charged in Essex County Indictment No. 91-01-0186, on the basis that he did not provide a factual basis to support a conviction of that offense. The Burlington County court stated that defendant has litigated and re-litigated the issue of whether there was a sufficient factual basis in March 1991 to sustain a conviction for first-degree robbery. He litigated the issue in Essex County on a Motion to vacate his guilty plea[.] [H]e litigated the issue in the Appellate Division[.] [H]e litigated the issue in a Post-Conviction Relief application in Essex County, and he litigated the issue before the Appellate Division. This Court has a right to rely upon the Judgment of Conviction and a right to defer to the findings of the Essex County Court and the Appellate Division on this issue. Clearly, this defendant has had ample opportunity to litigate this issue and he has not been deprived of fundamental fairness or due process.

The Burlington County court entered an order dated August 21, 2007, memorializing its determination. This appeal followed.

While defendant's appeal was pending, we affirmed the order of the Essex County court denying defendant's motion to vacate his plea to Indictment No. 91-01-0186 and his PCR petition. State v. Ingram, No. A-2680-05 (March 14, 2008) (slip op. at 11). In our opinion, we noted that the court in Essex County had determined that there was an adequate factual basis for defendant's plea, he entered his plea knowingly and voluntarily, and the resulting sentence was not illegal. Id. at 15-16. We concluded that the record fully supported the trial court's findings. Id. at 16.

In this appeal, defendant raises the following arguments for our consideration:

POINT I: THE DEFENDANT IS NOT TIME BARRED IN ALLEGING THAT HIS SENTENCE WAS ILLEGAL.

POINT II: DEFENDANT'S SENTENCE WAS ILLEGAL BECAUSE IT WAS BASED IN PART UPON A PRIOR CONVICTION OF FIRST DEGREE ROBBERY IN WHICH THE FACTUAL BASIS FOR A PLEA TO FIRST DEGREE ROBBERY WAS INSUFFICIENT AND AT MOST SUPPORTED A [CONVICTION FOR] SECOND DEGREE ROBBERY.

We have thoroughly reviewed the record and are convinced that the appeal is entirely without merit. R. 2:11-3(e)(2). We therefore affirm the Burlington County trial court's August 21, 2007 order substantially for the reasons stated by the trial court in its written opinion of that date. We add the following brief comments.

As the trial court pointed out in its opinion, the issue of whether defendant provided an adequate factual basis for his plea to Essex County Indictment No. 91-01-0186 has been litigated and re-litigated. Indeed, defendant raised that very issue in his motion in Essex County in January 2003 to vacate his plea to first-degree robbery and to correct the allegedly illegal sentence. He raised the issue again in March 2005 when he filed a PCR petition and moved to set aside the conviction under Essex County Indictment No. 91-01-0186. As stated previously, the latter motion was denied by the court in Essex County on November 18, 2005 and its order was recently affirmed on appeal.

In view of our decision on defendant's appeal from the order entered by the court in Essex County on November 18, 2005, there is no merit whatsoever to defendant's contention that he was not lawfully sentenced pursuant to the "Three Strikes Law" as a result of his conviction in this matter of first-degree robbery. The "Three Strikes Law" permits a sentence of life imprisonment without parole to be imposed if a person had been convicted of first-degree robbery in violation of N.J.S.A. 2C:15-1 and has been previously convicted on two or more "prior and separate occasions" of first-degree robbery. Notwithstanding defendant's arguments to the contrary, his conviction in this case represents his third conviction of first-degree robbery, in violation of N.J.S.A. 2C:15-1. Consequently, his "three strikes" sentence is not illegal.

Affirmed.

20090209

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