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State v. Dollard

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
THOMAS DOLLARD, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-11-5153.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: March 11, 2009

Before Judges Cuff and C.L. Miniman.

Defendant Thomas Dollard appeals from the denial of his second petition for post-conviction relief. He is serving a life term with a thirty-year period of parole ineligibility for murder, felony murder, robbery, assault, burglary and weapon offenses. This court affirmed the conviction, State v. Dollard, No. A-5448-90 (App. Div. December 15, 1993); the Supreme Court denied certification, 136 N.J. 296 (1994). We affirmed the denial of defendant's first petition for post-conviction relief No. A-7138-95 (June 17, 1998); certification was denied, 157 N.J. 646 (1999).

On appeal, defendant raises the following arguments:

POINT I

THE PCR COURT ERRED WHEN IT BARRED DEFENDANT FROM RAISING HIS CLAIMS IN A SECOND PETITION FOR POST-CONVICTION RELIEF PURSUANT TO RULE 3:22-4 AND RULE 3:22-12.

POINT II

THE PCR COURT ERRED WHEN IT CONCLUDED THE TRIAL COURT'S FAILURE TO INSTRUCT AND DEFINE THE MEANING OF ATTEMPT AS IT RELATES TO THE ROBBERIES DID NOT VIOLATE DEFENDANT'S RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.

POINT III

THE PCR COURT ERRED WHEN IT CONCLUDED THAT THE TRIAL COURT'S INADEQUATE AND INCOMPLETE INSTRUCTIONS ON ACCOMPLICE LIABILITY DID NOT VIOLATE DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.

POINT IV

THE PCR COURT ERRED WHEN IT DECIDED THAT THE TRIAL COURT'S INSTRUCTION ON MURDER DID NOT DENY DEFENDANT OF A FAIR TRIAL BY REDUCING THE BURDEN OF PROOF ON THE STATE.

POINT V

THE PCR COURT ERRED WHEN IT DECIDED THAT THE DEFENDANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING HIS PLEA NEGOTIATION PHASE.

This second petition faces formidable obstacles. The first petition for post-conviction relief filed by defendant was timely, having been filed within five years of his May 21, 1991 conviction. R. 3:22-12(a). The present petition, filed in September 2006, is grossly out-of-time and defendant asserts no facts to demonstrate that the delay is excusable. Ibid.

Furthermore, defendant raises issues in this second petition that could have and should have been presented on direct appeal. R. 3:22-4. Defendant has not demonstrated that any issue raised in this second petition could not reasonably have been raised on direct appeal or in his first petition, that enforcement of this rule would cause a fundamental injustice, or that denial of relief would offend any federal or state constitutional rights. R. 3:22-4(a)-(c).

As to the merits, none of the issues raised by defendant are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Fullilove in his comprehensive and thorough November 30, 2007 oral opinion.

Affirmed.

20090420

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