On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-09-3308.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
Defendant Steven Reeves appeals from the denial of his December 6, 2006, petition for post-conviction relief (PCR). We affirm.
Defendant was convicted on March 29, 1993, of third-degree conspiracy, N.J.S.A. 2C:5-2; third-degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (two counts); first-degree attempted murder, N.J.S.A. 2C:5-1 (three counts); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (three counts); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.
Defendant was sentenced to three eighteen-year terms of imprisonment for the three first-degree attempted-murder charges, two consecutive and one concurrent to the first. He was sentenced to three five-year terms concurrent to the first eighteen-year term for receiving stolen property and the two counts of theft by unlawful taking. He was sentenced to two eighteen-month terms concurrent to the first eighteen-year term for resisting arrest and unlawful possession of a weapon. The remaining convictions were merged for sentencing purposes.
Defendant appealed his conviction and sentence, arguing that prosecutorial misconduct denied him due process of law and that the sentence was manifestly excessive. State v. Reeves, No. A-2471-95T4 (App. Div. June 10, 1997) (slip op. at 2). We found "no support in the record for defendant's contention that the prosecutor expressed his personal belief or opinion as to the truth or falsity of the evidence or the guilt of defendant," nor did we find "any support for the contention that the prosecutor asked the jury to step into the victim's shoes." Id. (slip op. at 5). We also found that the sentencing "was in accordance with the sentencing guidelines and based on a proper weighing of the aggravating and mitigating factors supported by the record" and did "not shock our judicial conscience." Ibid.
In his petition for PCR, defendant asserted that he was denied the effective assistance of appellate counsel. Specifically, he contended that his appellate counsel did not appeal the imposition of the consecutive eighteen-year sentence for one of the three attempted murders. He contends that counsel ought to have argued under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), that all three eighteen-year sentences should have been concurrent to each other. Defendant also argued that the five-year bar of Rule 3:22-12(a) did not apply because it was his contention that the sentence was illegal under Yarbough.
The PCR judge found that the Yarbough factors were considered by the sentencing judge, who stated his reason for imposing a consecutive sentence on the record and that defendant's trial counsel advocated for concurrent sentences. He found that we had considered and rejected the issue of excessive sentencing as lacking in merit and concluded that he did not have to decide the issue respecting the procedural bar because there was no merit to the application.
Defendant raises the following issues on appeal:
POINT I - THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO CONSIDER DEFENDANT'S CLAIMS DUE TO A PROCEDURAL BAR.
POINT II - APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE OF CONSECUTIVE SENTENCES CONSTITUTED INEFFECTIVENESS OF COUNSEL. (Not Raised Below)
POINT III - THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF ...