October 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IAN BURTON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 95-02-0213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2009
Before Judges Fisher and Sapp-Peterson.
On June 9, 1995, defendant Ian Burton was charged in Monmouth County Indictment No. 95-06-0984-M with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a) (Count One); first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1) (Count Three); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (Count Four); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b) (Count Five). Trial on the charges was bifurcated, and defendant was first tried on Counts One through Four. Upon conviction on all four counts, a second trial was immediately conducted before the same jury on Count Five, with the jury convicting defendant on this count as well.
At sentencing, the court granted the State's motion to impose a discretionary extended term as a persistent offender. The court imposed an aggregate fifty-eight-year term of imprisonment with a twenty-nine-year period of parole ineligibility.
On appeal, we affirmed the conviction but vacated the sentences imposed on Counts Two and Four and remanded for imposition of a mandatory extended term. State v. Burton, No. A-6963-96T4 (App. Div. January 28, 1999). The Supreme Court denied certification. State v. Burton, 158 N.J. 687 (1999). Upon re-sentencing, the court once again imposed an aggregate fifty-eight-year term of imprisonment with a twenty-nine-year period of parole ineligibility on February 11, 1999.*fn1
In May 1999, defendant filed a petition for post-conviction relief (PCR). Counsel assigned to represent defendant submitted a supplemental brief in support of defendant's PCR petition. Defendant claimed he did not receive effective assistance of counsel. Following an evidentiary hearing, Judge Farren denied the petition, finding that trial counsel's performance was not deficient. On appeal, we affirmed. State v. Burton, No. A- 0296-00T4 (App. Div. January 15, 2002). The Supreme Court denied certification. State v. Burton, 172 N.J. 180 (2002). In July 2006, the court denied defendant's motion to amend his judgment of conviction.
In June 2007, defendant filed a second PCR petition. The court subsequently entered an order denying assigned counsel to defendant. The court also denied defendant's motion for reconsideration of its decision finding no good cause for assignment of counsel. Defendant proceeded pro se, and on April 18, 2008, following a hearing, the court rendered an oral decision denying the second PCR petition:
Defendant's ineffective assistance of trial counsel claim is procedurally barred under 3:22-5. . . .
[H]ere, the defendant claims ineffective assistance of trial counsel because of his alleged failure to adequately investigate the defendant's case. However, the defendant does not provide support for his claim. There is really no certification other than his own certification. He's indicated here that he had some investigator who investigated, but there's no information about that supplied to this [c]court. And from the procedural standpoint, the defendant raised this ineffective assistance of trial counsel claim in his first PCR application . . . . And Judge Farren denied the PCR and found that trial counsel's "performance was not deficient. She actually did what she should have done."
He is simply adding another claim of ineffective assistance of counsel to this particular motion, and now he's doing it eight years later and raising the same claim. And, really, the issue of whether somebody else committed this particular offense was well-known at the time of the trial. . . .
. . . I see no reason to relitigate that which already has been addressed. This claim was perfectly capable of being raised in any earlier application, and I'm not going to revisit why the exact claims have not, but my guess is that they were found to have no merit at that particular time. But eight years later, we're not going to go into those claims that should have been addressed at an earlier procedure, and, in fact, were, in a sense, addressed.
Now, in terms of his PCR counsel, I think the same argument applies. . . .
. . . There's no legal authority for the new presentence report, and I don't see a due process violation by the extended term which was basically directed and appropriate under the Graves Act[, N.J.S.A. 2C:43-6c,] and mandated by the Appellate Division. So, I really don't see that procedurally he can once again renew those claims. He's barred.
. . . [H]ere, we have basically eight years later, after Judge Farren's amendment of February 11, 1999, [and] we're revisiting the same issues. This is more than three years beyond the five-year time limitation, and there's been no showing that there was any excusable neglect in this particular proceeding, and, therefore, . . . I'm not even going to go into the merits. I've sort of addressed them tangentially as I have indicated here.
I see no basis to renew the inadequate counsel claim. It's been litigated before. . . . And, again, when Judge Farren had his hearing, he found that the efforts that defendant made at that time in presenting a hearing were simply a "pack of lies" and that [counsel] adequately represented him, and this [c]court is not going to revisit that issue, and he didn't double count the aggravating factors. There's no need, again, for a PSI, and this sentence was not illegal. And so, therefore, I'm satisfied that this PCR application should once again be denied, and I will deny it for the reasons I've stated on the record.
On appeal, defendant raises the following points for our consideration:
POINT I THE PCR TRIAL COURT'S DECISION THAT DEFENDANT'S SECOND PCR CLAIMS WERE ALREADY ADJUDICATED [IS] NOT SUPPORTED BY CREDIBLE EVIDENCE [AND] THUS DEPRIVED DEFENDANT OF HIS 6TH & 14TH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION; N.J. [CONST.] ART[.] [I], ¶ 10 .
POINT II THE PCR TRIAL COURT'S DECISION THAT DEFENDANT'S SECOND PCR CLAIMS ARE PROCEDURALLY BARRED IS NOT SUPPORTED BY CREDIBLE EVIDENCE [AND] THUS DEPRIVED DEFENDANT OF HIS 6TH & 14TH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION; N.J. [CONST.] ART[.] [I], ¶ 10 .
POINT III THE PCR TRIAL COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING [AND] THUS DEPRIVED DEFENDANT OF HIS 6TH & 14TH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION; N.J. [CONST.] ART[.] [I], ¶ 10 .
We have carefully considered the points raised in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Chaiet in his April 18, 2008 oral opinion. We add the following brief comments. Defendant raised ineffective assistance of trial counsel in his first PCR hearing and in a supplemental pro se brief on appeal from that hearing. As such, he is precluded from revisiting that issue in his second petition. R. 3:22-5. In addition, the second PCR petition was filed beyond the five-year time limitation pursuant to Rule 3:22-12 and there is nothing in the record demonstrating excusable neglect.