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State v. Geiger

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 25, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEVEN P. GEIGER, SR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 90-10-0914.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 16, 2009

Before Judges Stern and Graves.

On October 1, 1992, a jury found defendant Steven P. Geiger, Sr., guilty of purposely or knowingly causing the death of Clifford Thomas and other offenses. During a sentencing hearing on November 6, 1992, the trial court merged defendant's less serious convictions into his conviction for murder and committed defendant to the custody of the Commissioner of the Department of Corrections for thirty years with a thirty-year period of parole ineligibility. On defendant's direct appeal, we affirmed his murder conviction and sentence, State v. Geiger, No. A-2599-92 (App. Div. April 10, 1995), and the Supreme Court denied defendant's petition for certification. 142 N.J. 450 (1995).

On January 12, 2005, more than twelve years after the entry of defendant's judgment of conviction, defendant filed a post-conviction relief petition, claiming that his sentence was "illegal and unconstitutional" because the Department of Corrections "retroactively cancelled all good time credits to persons serving a prison term for murder." But that argument clearly lacks merit. See Merola v. Dep't of Corr., 285 N.J. Super. 501, 514 (App. Div. 1995) ("The controlling statutes and regulations explicitly and repeatedly provide that inmates serving a mandatory minimum period of incarceration may not shorten their mandatory terms with commutation and work credits."), certif. denied, 143 N.J. 519 (1996).

Following oral argument on November 16, 2006, the court stated its reasons for denying defendant's petition in a written decision dated December 15, 2006. The court ruled that defendant's petition was time-barred because it was not filed within the five-year period allowed under Rule 3:22-12(a), and defendant failed to show either "excusable neglect" in not filing the petition within the allowed time or "exceptional circumstances" that would justify an extension of that time. State v. Afanador, 151 N.J. 41, 52 (1997). Nonetheless, the court addressed the merits of defendant's petition, and we agree with the court's conclusions.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT I

DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED.

POINT II

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF APPELLATE COUNSEL WAS ESTABLISHED.

POINT III

THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO INEFFECTIVE ASSISTANCE OF COUNSEL, REGARDING THE TRIAL COURT'S DEFINING "PROSTRATION OF FACULTIES" TO THE JURY. (Not Raised Below)

Defendant also argues in a pro se supplemental brief that the "retroactive cancellation of his 'good time' credits has prolonged his sentence, in violation of the ex post facto and due process clauses."

After reviewing the record and the applicable law, we conclude that these arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). The court's factual findings are supported by sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 472 (1999), and it correctly applied well-settled legal principles. We therefore affirm substantially for the reasons stated by Judge Allen-Jackson in her written decision on December 15, 2006.

Affirmed.

20090925

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