On appeal from the State of New Jersey, Law Division, Warren County, Indictment No. 91-05-0273.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Sapp-Peterson.
Defendant Bobby Brown appeals from the order of the Law Division denying his petition for post-conviction relief (PCR).
In January 1993, a jury convicted defendant of two counts of capital murder, N.J.S.A. 2C:11-3a (1) and (2), along with thirteen other charges contained in Indictment No. 91-5-0273 returned by a Warren County grand jury. Following a subsequent penalty phase trial in which the jury found that the aggravating factors outweighed the mitigating factors, the jury unanimously agreed that the death penalty should be imposed against defendant for the death of victim Alice Skov. As to the murder of victim John Bell, the jury could not unanimously agree upon the appropriate punishment. The court imposed a sentence of death for the murder of Alice Skov, and life imprisonment with a thirty-year period of parole ineligibility for the murder of John Bell. The Supreme Court affirmed both the murder convictions and the life sentence for Bell's murder, but reversed the death sentence imposed for the Skov murder. State v. Brown, 138 N.J. 481, 563 (1994). The matter was remanded to the trial court for a penalty phase retrial or, alternatively, the imposition of life imprisonment with a thirty-year period of parole ineligibility in the Skov matter. On March 17, 1995, the court resentenced defendant to life imprisonment with a thirty- year period of parole ineligibility.
Defendant next appealed the sentences to an Excessive Sentencing Panel that rejected defendant's contention that the sentences imposed were excessive. The Supreme Court denied defendant's petition for certification. State v. Brown, 144 N.J. 587 (1996). On April 24, 1997, defendant filed his first PCR petition that was denied by the trial court. On appeal, we affirmed. State v. Brown, No. A-188-99T4 (App. Div. February 26, 2001). Nearly ten years later, on February 21, 2007, defendant filed a second PCR petition, which was originally characterized as a motion to correct an illegal sentence, for which there is no time bar. See R. 3:22-12(a). In a well- reasoned written opinion issued following a hearing, Judge John H. Pursel rejected defendant's claims and denied defendant's petition. Specifically, the judge found:
B. Defendant's Second PCR
Defendant in his present PCR Petition sets forth the following reasons why his sentence is illegal: 1) because his sentence is not specific as to the maximum amount of time he could spend incarcerated; and 2) because he was sentenced above the maximum allowed, and "contrary to the jury verdict."
[Rule] 3:22-12 states that an illegal sentence may be appealed at any time. However, prior adjudication of an issue on direct appeal or other post-conviction proceeding ordinarily bars consideration of that issue on post-conviction relief. R. 3:22-5. In this case, both the Law and Appellate Divisions have already adjudicated the issue of an illegal sentence in this case.
Moreover, in State v. McQuaid, 147 N.J. 464 (1997), the New Jersey Supreme Court held that although prior adjudicated claims will be procedurally barred from reconsideration, claims that differ substantially from those already adjudicated will be decided. In this case, Defendant's assertions of an illegal sentence are substantially the same as his prior assertions. The common thread in Defendant's arguments is that his sentence is illegal. The reasons which Defendant proffers as to why his sentence is illegal do not matter for the purpose of [Rule] 3:22-5. Defendant's two PCR claims are similar because of the grounds on which they are based.
As to Defendant's claim of ineffective assistance of counsel, the underlying sentence upon which the claim is based is well outside the five-year period contemplated by [Rule] 3:22-12. According to State v. Dillard, 208 N.J. Super. 722 (App. Div.), cert. denied, 105 N.J. 527 (1986) the five-year period contemplated by [Rule] 3:22-12 commences when the judgment of conviction is entered and is neither stayed nor tolled by appellate or other review proceedings. The file is deemed filed on the date it is marked "received." Appellate review of Defendant's sentences for the murders of John Bell and Alice Skov ended in 1993 and 1995, respectively. Defendant now files his Petition claiming ineffective ...