August 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE OLIVER PHILSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-01-0228.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 21, 2009
Before Judges Fuentes and Chambers.
Defendant Lawrence Oliver Philson appeals from the order of the Law Division, Criminal Part, denying his post-conviction relief (PCR) petition. Specifically, defendant challenges the sentence imposed by the court as excessive, and raises a number of grounds for overturning his conviction. We affirm.
We recited in great detail the facts and circumstances leading to defendant's arrest in our unpublished opinion affirming his conviction. State v. Lawrence Philson, No. A- 6501-01, (App. Div. Nov. 10, 2004). We incorporate by reference here that factual recitation. We further note that the trial court sentenced defendant to an aggregate term of sixty years.
In his direct appeal, defendant challenged the sentence on a number of grounds, including that it was excessive. We rejected all those arguments as without merit. On defendant's claim that his sentence was excessive when compared to his co-defendant Clinton Martin, we rejected that argument without prejudice to defendant's right to raise this issue in the context of a PCR petition. Id. slip op. at 18.
On May 18, 2007, defendant filed this PCR petition alleging prosecutorial misconduct and disparity in the sentences based on the sentence imposed by the court on his co-defendant Clinton Martin. Judge Petrolle heard oral argument on April 25, 2008, and denied the petition in an order dated May 1, 2008.
Defendant now appeals raising the following arguments:
THE MISCONDUCT OF THE PROSECUTOR DURING SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
THE DEFENDANT'S SENTENCE OF 60 YEARS IS UNFAIR AND UNJUSTIFIABLE IN COMPARISON TO THE "FREE RIDE" SENTENCE GIVEN TO HIS CO-DEFENDANT CLINTON MARTIN.
THE DENIAL OF THE DEFENDANT'S MOTION FOR DISCOVERY WAS ERROR AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR HEARING.
THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF DISPARITY OF SENTENCES AND THE COURT'S FAILURE TO HOLD AN EVIDENTIARY HEARING MANDATES A REVERSAL OF THE ORDER DISMISSING HIS PETITION FOR POST CONVICTION RELIEF.
We reject the arguments attacking his sentence as excessive when compared with the sentence received by Martin, substantially for the reasons expressed by Judge Petrolle in his oral opinion delivered from the bench on April 25, 2008. As Judge Petrolle emphasized, defendant was convicted of first- degree kidnapping and first-degree carjacking, serious crimes for which Martin was not found guilty. The two men also had significantly different criminal histories, showing that, unlike Martin, defendant's conduct was "gradually escalating." The trial court thus had a rational and legally sufficient basis to impose a more severe sentence on defendant. State v. Roach, 146 N.J. 208, 233 (1996).
Defendant's argument attacking his conviction based on alleged prosecutorial misconduct is barred under Rule 3:22-5, because it was an issue previously adjudicated on direct appeal. State v. Marshall, 173 N.J. 343, 351 (2002).
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