On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-11-4687.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Gilroy.
In this appeal, we consider defendant's argument that the trial judge erred in denying his petition for post-conviction relief (PCR), wherein he argued that his confession was involuntary because he was removed from jail against his will and taken to the prosecutor's office, where he gave the statements in question. We affirm the denial of defendant's PCR petition because of defendant's failure to raise the argument previously.
Following a trial, defendant was convicted of felony murder, aggravated manslaughter, armed robbery, conspiracy and possession of weapons for unlawful purposes. He was sentenced to two consecutive life terms with periods of parole ineligibility aggregating sixty years. In his direct appeal, defendant argued, among many other things, that his confession and waiver of his Miranda*fn1 rights were involuntary and should have been excluded. By way of an unpublished opinion, we rejected these arguments and affirmed. State v. Roach, No. A-5801-91T4 (App. Div. May 9, 1995).
The Supreme Court granted certification and affirmed defendant's conviction, but remanded to the trial judge to determine whether the disparity between the consecutive life sentences imposed on defendant and the concurrent life sentences imposed upon his confederate were justifiable. State v. Roach, 146 N.J. 208, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).
Following the Court's remand, the trial judge imposed the same sentence. In the interim, defendant had sought post-conviction relief, arguing he was deprived of the effective assistance of counsel. Defendant also moved for a new trial based upon newly-discovered evidence. Those motions and applications were denied, as was a motion for reconsideration.
Defendant appealed the trial court's orders. We consolidated those appeals and affirmed by way of an unpublished opinion. State v. Roach, Nos. A-1625-97T3 and A-3218-98T3 (App. Div. July 7, 2000). The Supreme Court granted certification, reversed the sentence and, in exercising original jurisdiction, ordered that defendant's terms run concurrently, like his confederate, and not consecutively. State v. Roach, 167 N.J. 565, 570-71 (2001).
Defendant filed his second PCR petition on November 21, 2005, relying upon N.J.S.A. 2A:67-4, and arguing, among other things, that he was unlawfully removed from the jail and taken to the prosecutor's office for questioning prior to providing inculpatory statements used against him at trial. He claims that his attorney was ineffective in failing to present this contention in seeking the suppression of his statements. The trial judge,*fn2 by way of a written opinion of April 8, 2008, found that this second PCR petition was time-barred and, also, that the claim that defendant was unlawfully removed from the jail for questioning and that his prior trial and appellate counsel should have raised that argument previously were without merit.
Defendant appealed, raising the following arguments for our consideration:
I. THE PCR COURT ERRED IN DENYING APPELLANT'S POST-CONVICTION RELIEF WHICH RAISED CONSTITUTIONAL ISSUES THAT MANDATED AN EVIDENTIARY HEARING.
II. APPELLANT'S REMOVAL FROM THE CUSTODY OF THE ESSEX JAIL ANNEX IN CALDWELL AND TRANSFERRED INTO THE CUSTODY OF THE ESSEX COUNTY PROSECUTOR'S OFFICE IN NEWARK WITHOUT A LEGAL WRIT OR ARREST WARRANT VIOLATED THE FEDERAL AND STATE CONSTITUTION, IN VIOLATION OF U.S.C.A. CONST. AMEND.4, 14 AS WELL AS N.J. CONST. ART. 1 PAR.7 AND N.J.S.A. 2A:67-4.
(a) APPELLANT'S DUE PROCESS RIGHTS WAS VIOLATED BY UNLAWFULLY REMOVING AND TRANSFERRING HIM FROM ...