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State v. Damon

March 4, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH DAMON, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 00-08-2449 and 00-09-2796.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2008

Before Judges Rodríguez and Waugh.

Defendant Kenneth Damon appeals from the denial of his petition for post-conviction relief (PCR), challenging his convictions and sentences after two jury trials. We affirm.

Camden County Indictment No. 2449-08-00

In 2001, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree being a person not permitted to have a weapon, N.J.S.A. 2C:39-7. After the conviction for possession of a weapon for an unlawful purpose was merged into the robbery conviction, the judge imposed an extended fifty-year term with a NERA*fn1 period of parole ineligibility*fn2 on the robbery; a concurrent five-year term on the conviction for unlawful possession of a weapon; and a consecutive ten-year term for being a person not allowed to have a handgun. We affirmed the conviction and sentence on direct appeal. State v. Damon, No. A-3742-02T4 (App. Div. April 5, 2004). The Supreme Court summarily reversed the sentence and remanded in light of State v. Meekins, 180 N.J. 321 (2004). State v. Damon, 181 N.J. 283 (2004). On remand, the judge imposed the same aggregate term of sixty years with the period of parole ineligibility reduced to seventeen years.

Camden County Indictment No. 2796-09-00

In 2001, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree being a person not permitted to have a weapon, N.J.S.A. 2C:39-7. After the convictions for aggravated assault, possession of a weapon for an unlawful purpose, and unlawful possession of a handgun were merged into the conviction for first-degree robbery, the judge imposed an extended fifty-year term subject to a seventeen-year period of parole ineligibility on the robbery conviction and a consecutive ten-year term for being a person not permitted to have a weapon. This sentence was to run consecutively to the sentence defendant was serving. We affirmed the conviction and sentence. State v. Damon, No. A-3741-02T4 (App. Div. March 30, 2004), certif. denied, 180 N.J. 455 (2004).

Defendant then filed a PCR petition challenging both convictions. He alleged that the convictions should be reversed due to "trial counsel['s] failure to present evidence at trial and appellate counsel['s] failure to raise issues on direct appeal." Attorney David A. Snyder filed a brief on behalf of defendant. The judge denied an evidentiary hearing and the PCR petition.

Defendant appeals contending:

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

We disagree. In fact, the following three contentions are barred by operation of ...


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