April 1, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
QUDDOOS FARRA'D, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 double jeopardy, and that a cross-racial identification charge was not required because identification was not an issue and because State v. Cromedy, 158 N.J. 122 (1999), the case requiring such a charge when a cross-racial identification was in issue, was not decided until two years after defendant's trial and thus was not controlling at the time of defendant's conviction.
Upon further appeal to us, defendant raises the following arguments:
POST CONVICTION RELIEF TRIAL COURT ERRED IN RULING THAT MOTION FOR CORRECTION OF ILLEGAL SENTENCE WAS TIME BARRED.
TRIAL COURT ERRED IN NOT GRANTING MOTION FOR NEW TRIAL FOR HAVING SIDE BARS WITHOUT PRO SE DEFENDANT'S KNOWLEDGE OR MEANINGFUL PARTICIPATION.
INEFFECTIVE ASSISTANCE OF COUNSEL ON FIRST PCR FAILED TO RAISE ALL ISSUES AND FAILED TO AMEND OR SUPPLEMENT (PCR) DENIED DEFENDANT AN ADJUDICATION OF ALL ISSUES.
INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL ALLOWED THE APPELLATE COURT TO RELY ON CLERICAL ERROR IN PSI REPORT TO AFFIRM EXTENDED SENTENCE.
TRIAL COURT ERRED IN NOT GIVING CROSS RACIAL IDENTIFICATION CHARGE TO JURY.
Following our review of the record in light of defendant's arguments, court rules and legal precedent, we affirm.
Defendant makes several arguments in support of his contention that he seeks relief from an illegal sentence, and thus that his PCR petition, filed on August 5, 2005, and his subsequent motion, filed on July 31, 2006, were not barred by the five-year time limitation contained in Rule 3:22-12. Defendant argues that imposition by the judge of an discretionary extended-term sentence, pursuant to N.J.S.A. 2C:44-3a, violated his Sixth-Amendment rights, since the existence of the required prior convictions was determined by the judge, not a jury. However, that argument was rejected by the New Jersey Supreme Court in State v. Thomas, 188 N.J. 137, 151-52 (2006). There, the Court held that the judicial factfinding required to determine the existence of predicate offenses required for imposition of an extended-term sentence pursuant to N.J.S.A. 2C:43-6(f) did not violate the defendant's Sixth Amendment rights as articulated in the United States Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000). Ibid. The factfinding conducted here similarly does not implicate such rights. Defendant additionally argues the applicability of State v. Natale, 184 N.J. 458 (2005) to his case. But the Court in Natale gave pipeline retroactivity, only, to that decision. Id. at 494. Defendant's direct appeals were concluded in 2000, five years before Natale was decided.
Defendant also notes that, in our decision affirming defendant's conviction and extended-term sentence on direct appeal, we stated:
On September 23, 1997 Judge Conte granted the State's motion for an extended term of imprisonment on the grounds of a repeat offender. In reaching his decision Judge Conte found that pursuant to N.J.S.A. 2C:44-3, defendant was convicted of more than two separate crimes since he was at least eighteen years old. Judge Conte also found defendant had more than two convictions within the last ten years. Defendant's presentence report indicates he was convicted of various offenses in New Jersey and New York prior to the current offense. Most notable were defendant's conviction in 1990 in New Jersey for possession of stolen property and uttering a forged document for which he received a five-to-seven-year term of imprisonment and four years of probation. Also, in 1995 Boxdale received a sentence of twenty years imprisonment with a ten-year period of parole ineligibility for an attempted robbery, possession of a handgun, and possession of a firearm for an unlawful purpose. Defendant's prior criminal history record was lengthy.
Defendant argues that trial and appellate counsel were ineffective, because they did not recognize that the 1990 date was incorrect, and that the crime described could not have constituted a predicate crime for purposes of N.J.S.A. 2C:44-3a. Thus, he claims that his extended-term sentence was illegal.
We are hampered in our analysis of defendant's argument by the absence of the pre-sentence report that allegedly contained the error and by the absence of a transcript of the sentencing proceeding. Nonetheless, we have reviewed defendant's criminal case history, which discloses that, in New Jersey, on December 2, 1975, defendant was given a suspended sentence of seven years, with four years of probation for fraud and possession of stolen property; on December 5, 1975, he received a sentence of three years in custody with one year of parole ineligibility for aggravated assault; on July 12, 1996, he was sentenced to twenty years in custody with a ten-year period of parole ineligibility for robbery and gun-related convictions; on April 22, 1997 he was sentenced to five years in prison for possession of controlled dangerous substances; and on September 23, 1997 he was sentenced to eighteen months' confinement for fourth-degree possession of a weapon. In addition, defendant's record indicates that, in 1975, defendant was found guilty in Virginia on two separate felony charges of credit card theft, and that, in 1981, defendant pled guilty in New York to separate felony charges of attempted robbery and robbery, receiving a prison sentence of three to six years.
N.J.S.A. 44-3a permits the imposition of an extended term sentence upon proof that defendant was at least twenty-one years of age at the time of the commission of the crime for which sentence is to be imposed and that he "has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced." It is clear that the statutory requirements were met in this case. State v. Dunbar, 108 N.J. 80 (1987); State v. Cook, 330 N.J. Super. 395 (App. Div.), certif. denied, 165 N.J. 486 (2000); State v. Mangrella, 214 N.J. Super. 437, 445-46 (App. Div. 1986), certif. denied, 107 N.J. 127 (1987).
To establish ineffective assistance of counsel, defendant must present evidence that satisfies the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 688, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.]
Defendant's proofs do not meet the Strickland standard, because defendant has offered no evidence to support his contention that trial counsel failed to note the alleged mistake in the pre-sentence report, and because, in light of his extensive record, defendant cannot demonstrate that the alleged error, if noted, would have affected his sentence, which clearly was statutorily authorized.
We decline to consider defendant's second argument that the trial court erred in not granting his motion for a new trial, an argument that is based upon the claim that side-bar conferences were held without defendant's knowledge or meaningful participation. That argument was presented to us previously in defendant's pro se brief in support of his initial appeal from his conviction and sentence and rejected by us in our opinion of January 27, 2000.
Defendant next argues that, because certain of his convictions were not merged for sentencing purposes, he has been subjected to double jeopardy. Following a hearing on our excessive sentencing calendar, in an order dated May 24, 2007, we remanded this matter for "consideration of merger issues." Defendant's criminal case history discloses that, on September 7, 2007, defendant was resentenced and on March 31, 2008 his sentence was "amended/modified." Defendant has not provided us with copies of those judgments of conviction, and he has offered nothing that would suggest that the judge to whom the matter was referred failed to order any necessary merger of offenses on remand. Without relevant amended judgments of conviction and arguments addressed to them, we are unable to address defendant's claims.
We reject defendant's position that a cross-racial identification charge should have been given in this matter. Defendant and the victim knew each other. As a consequence, identification was not at issue.
We decline to address any additional arguments contained in defendant's briefing, find them to lack sufficient merit to warrant consideration in a written opinion. R. 2:11-3(e)(2).