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State v. Howard

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 4, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN HOWARD, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 94-09-1548.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2009

Before Judges Stern and Rodríguez.

Defendant John Howard, appeals from the denial of his second petition for post-conviction relief (PCR). We affirm.

In March 1996, defendant was convicted, following a jury trial at which he represented himself, of third-degree conspiracy, N.J.S.A. 2C:5-2; seventeen counts of third-degree burglary, N.J.S.A. 2C:18-2; and thirty-three counts of third-degree theft, N.J.S.A. 2C:20-3a.

After merging the conspiracy count, Judge Michael D. Farren granted the State's motion for an extended term. He imposed an aggregate sentence of forty years with a twenty-year parole disqualifier.

On direct appeal, we affirmed the convictions. State v. Howard, No. A-5657-95T4 (App. Div. November 30, 1998), certif. denied, 160 N.J. 89 (1999). The challenge on direct appeal focused on the waiver by defendant to the assistance of counsel.

In May 1999, defendant filed pro se a PCR petition. Counsel was assigned. Defendant raised six contentions on appeal from the denial. One of them was that "the aggregate sentence imposed was manifestly excessive." With respect to this issue we held:

[D]efendant's argument that his sentence was excessive is not appropriate in the context of a petition for post-conviction relief. Rule 3:22-2(c) provides that post-conviction relief may be granted where the sentence imposed is "in excess of or otherwise not in accordance with the sentence authorized by law." It is well established that "sentences claimed to be excessive are only reviewable on direct appeal and not by post-conviction applications." State v. Vance, 112 N.J. Super. 479, 481 (App. Div. 1970), certif. denied, 58 N.J. 97 (1971). Stated somewhat differently, "mere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground for post-conviction relief and can only be raised on direct appeal from the conviction." State v. Clark, 65 N.J. 426, 437 (1974). [State v. Howard, No. A-270-00T4 (App. Div. March 28, 2002) (slip op. at 7-8), certif. denied, 174 N.J. 192 (2002).]

The judge denied the petition. We affirmed the denial of the first PCR petition. Ibid.

Defendant filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey. Judge Garrett E. Brown, Jr. denied the petition and declined to issue a certificate of appealability to the Third Circuit. Howard v. Hendricks, Civ. No. 03-1254(GEB) (D.N.J. March 17, 2005).

On June 7, 2005, more than nine years after the conviction, defendant filed pro se a second PCR petition alleging that his sentence was illegal. Judge Edward M. Neafsey denied defendant's motion for assignment of counsel, and in an order dated June 22, 2006, dismissed the second PCR petition. The judge found that defendant's petition was procedurally barred, and also failed on the merits.

Defendant now appeals. He contends:

THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S PETITION FOR [PCR]. DEFENDANT'S SENTENCE IS ILLEGAL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDENTS TO THE UNITED STATES CONSTITUTION.

We reject these contentions.

We hold that the petition is time barred by Rule 3:22-12(a). Although defendant argues that the sentence imposed on him was illegal, he is really arguing excessiveness of the sentence. The sentence imposed is legal because it comes within the statutory sentencing parameters. An argument that some of the sentences should not have run consecutively raises an excessiveness issue not the legality of the sentence. We stated that in addressing the first PCR petition. The petition is also barred by Rule 3:22-5 (Bar on Grand Expressly Adjudicated).

Therefore, the argument is without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

20090504

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