On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1958-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges A. A. Rodríguez and Payne.
Defendant, Quddoos Farra'd (formerly, Ike Boxdale), appeals pro se from the denial of defendant's petition for post-conviction relief (PCR) and motion to correct an illegal sentence.
This matter has a lengthy procedural history. In April 1997, defendant was tried by a jury for crimes arising from his assault upon and attempted rape of Sally Samuels on September 27, 1995. Defendant represented himself at trial. Following trial, defendant was convicted of second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(4) (Count One), third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts Two and Three), fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3) (a lesser-included offense under Count Four), third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (Count Five), fourth-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(3) (Count Six), third-degree criminal restraint, N.J.S.A. 2C:13-2 (Count Eight), third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Nine), and fourth-degree possession of a knife under circumstances not appropriate for its lawful use, N.J.S.A. 2C:39-5d (Count Ten).
Following conviction, the trial judge granted the State's motion for an extended term, and on February 2, 1998 he sentenced defendant on Count One (second-degree attempted aggravated sexual assault) to twenty years in prison with ten years of parole ineligibility and to a consecutive five-year term with two and one-half years of parole ineligibility on Count Five (third-degree aggravated assault with a deadly weapon). Following merger, concurrent terms were imposed for the remaining crimes. Megan's Law penalties were imposed.
On appeal, we affirmed defendant's conviction and sentence in an unreported opinion, specifically finding "no fault" with the sentence. State v. Ike Boxdale,*fn1 No. A-2052-97T4 (App. Div. Nov. 23, 1999). However, we remanded the matter to permit technical corrections to the Judgment of Conviction, which did not correspond to the sentencing transcript. We subsequently issued a second opinion to address arguments raised in a timely-filed pro se brief,*fn2 again affirming defendant's conviction and sentence and finding that defendant's pro se arguments were without merit and insufficient to warrant a written opinion. R. 2:11-3(e)(2). State v. Boxdale, No. A-2052-97T4 (App. Div. Jan. 27, 2000). Certification was denied. State v. Boxdale, 163 N.J. 97 (2000).
On September 30, 2002, defendant petitioned for PCR, challenging the imposition of an extended term and the consecutive nature of his sentences. Following denial of his petition by the trial court and appeal to us, we affirmed the extended sentence, but granted PCR and remanded the matter for reconsideration of whether the five-year prison term for assault with a knife should be consecutive to the extended twenty-year term for attempted sexual assault, finding that the trial judge had failed to articulate his reasons for imposing consecutive sentences and that the appellate counsel had been ineffective for not raising the issue. State v. Farrad, No. A-4444-03T4 (App. Div. June 22, 2005). On remand, the sentencing judge declined to change the sentence, expressing his reasons for not doing so on the record on September 27, 2005.
Reconsideration was denied.
Defendant again appealed, and his case was docketed on our excessive sentencing calendar. Following oral argument, we entered an order rejecting the argument that imposition of consecutive sentences was unwarranted in circumstances in which defendant offered the victim the choice of rape or being cut, but, in an amended order dated May 24, 2007, we remanded the matter for "consideration of merger issues" involving convictions for which lesser, concurrent sentences had been imposed.
In the meantime, on August 8, 2005, defendant filed a second petition for post-conviction relief, and almost one year later, on July 31, 2006, a motion to correct an illegal sentence. Both were denied by a different motion judge in an order dated March 19, 2007. Defendant again appealed, and in an order dated August 22, 2007, we requested the motion judge to reduce his oral opinion to writing. In a written opinion dated September 25, 2007, the judge found defendant's petition, filed more than five years after his 1997 conviction, to have been out of time pursuant to Rule 3:22-12, and that defendant offered no support for his claim that the rule should be relaxed as the result of excusable neglect or in the interest of justice. Addressing the merits, the judge rejected defendant's claim that because he was recently diagnosed with post-traumatic stress disorder (PTSD), he was not qualified to represent himself at trial, noting, as we did upon initial appeal, that defendant's qualifications were explored by the trial judge before the trial, and finding additionally that nothing in the record demonstrated lack of qualification, no expert confirmed defendant's alleged PTSD or demonstrated how it would effect defendant's trial performance, and that at all times, defendant had standby counsel available to him. The judge found defendant's claims that he had received ineffective assistance of PCR counsel to be inadequately supported, that he was never subject to ...