July 21, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRYL JENNINGS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 96-08-1436, 96-08-1438.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges Rodríguez and Newman.
Defendant Darryl Jennings appeals from the denial of a first petition for post-conviction relief (PCR), alleging that trial counsel rendered ineffective assistance. We affirm.
Following a jury trial, defendant was convicted of second- degree robbery, N.J.S.A. 2C:15-1. Then defendant was convicted, following another jury trial, of second-degree robbery, N.J.S.A. 2C:15-1. Defendant then entered a negotiated plea regarding additional charges: two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of second-degree armed robbery, N.J.S.A. 2C:18-2. The State agreed to recommend thirty years with a fifteen-year parole disqualifier. This sentence would run consecutive to a sentence that defendant was already serving. The State agreed to dismiss all other charges. In April 2000, Judge DeStefano imposed the negotiated sentences. We affirmed the sentences on direct appeal. No. A-6472-99T4, certif. denied, 171 N.J. 41 (2002).
In May 2007, over seven years after the convictions, defendant filed a PCR petition, raising allegations of ineffective assistance of trial counsel due to "lack of application toward mitigation of defendant's sentence." Judge DeStefano determined that an evidentiary hearing was not required and denied the petition.
On appeal, defendant contends:
I. DEFENDANT'S MOTION FOR [PCR] SHOULD NOT BE PROCEDURALLY BARRED FROM CONSIDERATION ON THE MERITS.
II. SENTENCING COUNSEL'S LACK OF APPLICATION TOWARD MITIGATION OF DEFENDANT'S SENTENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO [PCR].
III. DEFENDANT RECEIVED A DISPARATE SENTENCE AS COMPARED TO AN ANALAGOUS CONVICTION OF AN ADJACENT JURISDICTION THEREBY RENDERING HIS SENTENCE AS ILLEGAL FOR UNDERMINING FAIRNESS AND PUBLIC CONFIDENCE.
IV. DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE ENTITLING HIM TO AN EVIDENTIARY HEARING.
We reject these contentions.
It is patently apparent that the PCR petition was time-barred. Although defendant argues that this appeal should not have been dismissed as time-barred, he makes no showing that the five-year time limitation set by Rule 3:22-12(a) should not apply. In short, nothing in the PCR petition sets forth sufficient facts to find "excusable neglect." Moreover, the sentence was challenged on appeal. Therefore, it is also barred on grounds that it was expressly adjudicated. R. 3:22-5. We also find no basis to conclude that trial counsel was ineffective. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987).
Finally, defendant makes a disparate sentence argument based not on a co-defendant's sentence, but on "an analogous conviction in an adjacent jurisdiction." He asserts that his situation is similar to that of inmate James Dunsavage. There is no authority for making such an application. We agree with Judge DeStefano's analysis:
Generally, the defendant held for comparison is a co-defendant from the same case. See i.e. State v. Lee, 235 N.J. Super. 410, 413 (App. Div. 1989).
This court finds that the defendant's situation is so dissimilar to James Dunsavage that there is no adequate basis to conclude an injustice would occur unless further review was conducted. While the court has not been presented with the entire record of James Dunsavage, the differences are plain to see. The defendant and Dunsavage were not co-defendants. The charges were not identical as the defendant pled guilty to one count of armed robbery while Dunsavage pled to counts of robbery. There is no evidence presented that their prior criminal records were similar. When examining differences in sentencing, it is important to also consider "the explanation of the balancing of aggravating and mitigating factors with regard to imposition of sentences." State v. Pillot, 115 N.J. 558, 566 (1989). The Honorable Phillip L. Paley, J.S.C. found that Dunsavage was unlikely to commit similar crimes in the future and considered that as a mitigating factor at time of sentencing. This court found the defendant was "a clear danger to the community" and "an obvious risk [to] commit another offense." See Transcript of Sentencing at 8 (April 7, 2000). It was further found that "he must be taken out of the community for as long as possible." Id. at 10. Judge Paley next found as a mitigating factor that Dunsavage would likely respond to probationary treatment. The defendant in this case had already been given a second chance at reform through the Pretrial Intervention Program based on a prior theft conviction. The defendant did not take that opportunity and proceeded to commit a wave of serious crimes which included, in one case, attacking and causing physical injury to a victim with a baseball bat. In total, three mitigating factors were found for James Dunsavage. No mitigating factors were found for the defendant. Upon review of the limited record in front of this court, it is clear the defendant's history is not in any way similar to that of James Dunsavage. It shall be further noted that the Appellate Division has already found that defendant's sentence is not excessive or unduly punitive, and did not constitute an abuse of discretion. State v. Jennings, Docket No. A-6472-99T4 (2001).
Affirmed for the reasons expressed by Judge DeStefano in his December 14, 2007 opinion.
© 1992-2009 VersusLaw Inc.