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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...