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State v. Peterson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 16, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICKY LEE PETERSON, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 287-74.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2009

Before Judges Graves and Grall.

On January 22, 1976, pursuant to a plea agreement, defendant Ricky Peterson entered a non vult plea to felony murder. On the same date, he pled guilty to multiple counts of armed robbery. When defendant entered his pleas, he was serving a fourteen to twenty-two year prison term for armed robbery and atrocious assault and battery. In accordance with his plea agreement, on February 23, 1976, defendant was sentenced to a life term for murder, which was consecutive to the sentence he was then serving. In addition, he was sentenced to a ten to twelve year prison term for armed robbery, which was consecutive to the life term.

Three years later, in 1979, defendant filed a motion to vacate his non vult and guilty pleas. Defendant claimed that he had been misled because his attorneys told him that if he did not accept the plea offer he could be charged as a multiple offender, in which case he would have been exposed to an additional consecutive life sentence. Following an evidentiary hearing, the trial court denied defendant's motion. Defendant appealed and this court affirmed the trial court's decision. State v. Ricky Lee Peterson, No. A-1308-79 (App. Div. March 27, 1981). The Supreme Court denied defendant's petition for certification. 87 N.J. 380 (1981).

Defendant also filed a habeas corpus petition alleging that material misrepresentations by his attorneys, and the court violated his constitutional right to due process of law. Defendant's petition for habeas corpus relief was denied on April 14, 1983, for failure to exhaust State remedies. Defendant then filed a post-conviction relief (PCR) petition, which was dismissed by the trial court on September 27, 1983. Defendant appealed from that order, and we affirmed. In our unpublished decision, we stated:

Briefly, [defendant] contends that he entered his plea of guilty on the belief that he was subject to sentencing as an habitual offender under N.J.S.A. 2A:85-8 to 13 (repealed), but that the judge had agreed not to impose such a sentence as a result of plea negotiations. It is conceded that he was not subject to treatment as an habitual offender and defendant asserts that had the judge and his attorney not misled him into believing that he was he would not have entered his plea of guilty.

This matter has been the subject of repeated court reviews over the years. On November 7, 1979 Judge Porreca filed a detailed formal written opinion for the Law Division in which he expressly found that the possibility of an habitual offender sentence was planted in defendant's mind by a fellow jail inmate, and that although defendant's attorney assured him that such a sentence could not be imposed defendant insisted as part of the negotiations that this assurance be given to him by the sentencing judge at the time of sentencing. Judge Porreca concluded that the possibility of an habitual offender sentence was not a factor material to defendant's plea of guilty.

We find nothing in the record presented on this appeal materially different from those earlier considered, and the issue having been decided is not subject to relitigation. State v. Rosen, 110 N.J. Super. 216, 219 (App. Div. 1969), aff'd o.b., 56 N.J. 89 (1970); State v. Stewart, 196 N.J. Super. 138, 143-144 (App. Div. 1984), certif. denied, 99 N.J. 212 (1984). [State v. Ricky Lee Peterson, No. A-1308-79 (App. Div. April 23), certif. denied, 109 N.J. 482 (1987).]

Ten years later, in 2007, defendant filed a "motion to correct an illegal sentence." Following oral argument on November 9, 2007, the court concluded that defendant had received a legal sentence and that all of his arguments were barred because they had either been adjudicated in his prior appeals, Rule 3:22-5, or they could have been raised in prior proceedings, Rule 3:22-4.

On appeal, defendant argues that the "homicide statute [he] was adjudicated under produced and induced illegal sentencing procedures and sentences." We are satisfied from our review of the record that defendant's contentions are without merit, Rule 2:11-3(e)(2), and affirm substantially for the reasons stated by Judge Waters on November 9, 2007.

Affirmed.

20090416

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