On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-01-00437.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Reisner.
Defendant appeals from an order of August 8, 2007 denying his third petition for post-conviction relief (PCR). We affirm.
Defendant is serving an aggregate sentence of life plus forty years imprisonment with a fifty-year parole disqualifier for crimes committed in 1990, for which he was sentenced on May 8, 1992. Defendant shot two people, killing one and wounding the other, for which he was convicted of felony murder and attempted murder. He was also convicted of eleven other offenses. On four of those offenses, Judge Lester sentenced defendant to mandatory extended terms of twenty years imprisonment with a ten-year parole disqualifier as a second Graves Act offender pursuant to N.J.S.A. 2C:44-3d. These were counts five and six, for which defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and counts nine and eighteen, for which defendant was convicted of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a.
Defendant appealed. In an unpublished opinion, we affirmed his convictions, and, except for one sentencing issue not relevant here, we affirmed his sentences. State v. Khalif, No. A-0553-92T4 (App. Div. January 23, 1995). The Supreme Court denied certification. State v. Khalif, 140 N.J. 327 (1995). Defendant filed PCR petitions in 1995 and 2000. Both were denied. We affirmed both denials, and the Supreme Court denied defendant's petitions for certification.
Defendant filed this petition on May 21, 2007. He contended the extended term sentences imposed under N.J.S.A. 2C:44-3d on the counts we have mentioned were illegal because the issue of whether defendant had a prior Graves Act conviction was not submitted to the jury. Judge Lester denied the petition. She noted that defendant raised substantially the same issue in his direct appeal and it was rejected by this court. Therefore, she held that the issue was procedurally barred pursuant to Rule 3:22-5 because it had been previously adjudicated on the merits. She also found the contention substantively lacking in merit because a prior conviction may be considered by a sentencing judge in increasing the range of penalties to which a criminal defendant is exposed. State v. Pierce, 188 N.J. 155, 161-63 (2006).
On appeal from Judge Lester's order denying his third PCR petition, defendant argues:
DEFENDANTS RIGHTS WERE VIOLATED WHEN THE SENTENCING COURT IMPOSED AN EXTENDED TERM SENTENCE PURSUANT TO THE GRAVES ACT. THUS, VIOLATING HIS CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS AS GUARANTEED BY THE UNITED STATES CONSTITUTION.
Essentially, defendant argues that the State failed to prove that he had previously been convicted of a Graves Act offense.
In his direct appeal, defendant's many arguments included Point VII: "THE SENTENCE IMPOSED UPON THE DEFENDANT OF LIFE IMPRISONMENT WITH A FIFTY YEAR PAROLE INELIGIBILITY SHOULD BE VACATED SINCE IT WAS EXCESSIVE AND ILLEGAL." State v. Khalif, supra, slip op. at 7. We disposed of the issue as follows:
Defendant argues that the imposition of the extended term under N.J.S.A. 2C:44-3d was inappropriate because the trial judge relied on the presentence report alone to ascertain that defendant was previously convicted of a Graves Act*fn1 offense prior to imposing the extended term. We disagree.
The trial judge incorporated her ruling from the Ramseur*fn2 hearing on the defense motion to strike defendant's prior murder as an aggravating factor in determining that defendant had previously been convicted of a Graves Act offense. At the Ramseur hearing, the judge found that defendant used a gun to commit the prior murder. Accordingly, there was no need for a separate hearing to determine that defendant was previously convicted of a Graves Act offense because "the record of the guilty plea [from the prior murder] generates no uncertainty with respect to ...