February 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEFFREY BUNYAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 83-11-3416.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2009
Before Judges Stern and Waugh.
We affirm the denial of defendant's third petition for post-conviction relief (PCR) substantially for the reasons expressed by Judge Patricia K. Costello in her comprehensive letter opinion of May 25, 2006. We add only the following.
Defendant was assigned counsel in the Law Division, R. 3:22-6(b), and therefore he was assigned counsel on the appeal. See R. 2:7-2(a), 2:7-4. Defendant acknowledges the accuracy and detail of Judge Costello's recitation of the procedural history.*fn1
Accordingly, Judge Costello properly employed the time bar of Rule 3:22-12 and procedural bars of Rule 3:22-4 and -5. While the effectiveness of counsel on the second PCR (motion for new trial) could not be raised before the third was filed, we note that his success in the second before us resulted in the proceedings in the Supreme Court.
After argument in the Law Division on this PCR, a consent order was entered reducing the life sentence with twenty-five years to be served before parole eligibility for the murder conviction, and consecutive five-year term with two and a half years of parole ineligibility imposed on the possession of a weapon for an unlawful purpose conviction. The sentence was reduced to fifty years (an extended term, see N.J.S.A. 2C:11-3b, 2C:43-7 as they stood at the time), with the twenty-five years of parole ineligibility and a concurrent sentence on the weapon offense.*fn2 The offenses occurred in 1982 before the amendment to the murder statute requiring a sentence of thirty years to life imprisonment with thirty years to be served before parole eligibility for murder, enacted later that year. See N.J.S.A. 2C:11-3b.
Defendant nevertheless continues to attack the sentence, and correctly asserts an illegal sentence can be corrected at any time. R. 3:22-12. However, at the time defendant committed these offenses, there was an exception for murder to the extended term provisions of N.J.S.A. 2C:44-3a for the crime of murder. State v. Maguire, 84 N.J. 508, 520-26 (1980), held that an extended term could be imposed for murder without proving the requisite prior convictions otherwise necessary for enhancement under N.J.S.A. 2C:44-3a. In other words, an extended term of up to life imprisonment with twenty-five years before parole eligibility could be imposed, and the extended term sentence was properly imposed under the governing law applicable at the time of the offense, even if the PCR court was incorrect that the prior conviction prerequisite of N.J.S.A. 2C:44-3a was clearly satisfied.