On appeal from Superior Court of New Jersey, Law Division, Camden County, No. I-77-2019.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2009
Before Judges Wefing and Messano.
In 1978, a jury convicted defendant of two counts of murder, two counts of murder while armed, one count of robbery, and one count of robbery while armed. At sentencing, the trial court sentenced defendant to two consecutive life sentences for the murder convictions and two consecutive terms of nine to ten years for being armed while committing the murder. The trial court merged the remaining convictions into the murder convictions. We affirmed defendant's convictions and sentence. State v. Thomas, No. A-1799-78 (App. Div. Dec. 24, 1980), and the Supreme Court denied defendant's petition for certification, 87 N.J. 327 (1981).
Defendant has since filed a number of petitions for post- conviction relief, all of which were denied by the trial court.
Following several of those denials, defendant sought relief in this court but was similarly unsuccessful in each endeavor. In 2002, we denied what we noted was then defendant's sixth petition for post-conviction relief. State v. Thomas, No. A- 5265-99T3 (App. Div. Apr. 5, 2002).
In 2008, defendant filed a motion with the trial court which he described as one seeking to correct an illegal sentence. The trial court denied defendant's motion, and he has again appealed. He raises the following arguments on appeal.
POINT I: DEFENDANT WAS SENTENCED TO TWO CONSECUTIVE LIFE TERMS ON COUNTS ONE AND THREE, AND SENTENCED TO CONSECUTIVE TERMS ON COUNTS TWO AND FOUR TO NINE YEARS MINIMUM TO TEN YEARS MAXIMUM, ALL CONSECUTIVE TO EACH OTHER. BOTH N.J.S.A. 2A:113-1 "MURDER" AND N.J.S.A. 2A:151-5 "ARMED MURDER" USE THE SAME FACTUAL ELEMENT, "MURDER" BOTH REQUIRING PROOF OF A DEATH. THIS CONSTITUTES MULTIPLE PUNISHMENT FOR TWO CRIMES THAT CONSTITUTE THE SAME OFFENSE. THIS IS A STATUTE, (N.J.S.A. 2A:151-5), THAT VIOLATES THE DOUBLE JEOPARDY CLAUSE OF U.S. CONSTITUTIONAL AMENDMENT FIVE AS IT PLACED DEFENDANT TO BE SUBJECTED FOR THE SAME OFFENSE TWICE PUTTING HIM IN JEOPARDY OF LIFE AND LIMB. U.S. CONST. AMEND. FOURTEEN ENFORCES DOUBLE JEOPARDY VIOLATIONS AGAINST THE STATES. THIS STATUTE ALSO VIOLATES ARTICLE 1[,] PARAGRAPH 11 OF THE N.J. CONSTITUTION (1947). DEFENDANT'S SENTENCE ON COUNTS 1, 2, 3, 4 "MURDER[,]" "ARMED MURDER" ARE ILLEGAL BASED ON THE PROVISION OF THE STATE AND FEDERAL CONSTITUTIONS BEING VIOLATED AND A PETITION TO CORRECT AN ILLEGAL SENTENCE MAY BE FILED AT ANY TIME, R. 3:22-12, R. 3:22-2(a) APPLIES TO THE GROUND UPON WHICH RELIEF CAN BE GRANTED VACATING THE SENTENCES ON COUNTS 1, 2, 3, 4 AND DISMISSING THEM WITH PREJUDICE.
POINT II: DEFENDANT'S SENTENCE ON COUNT ONE AND THREE WERE FOR FELONY MURDER, DESPITE THIS, THE COURT SENTENCED THE DEFENDANT SEPARATELY FOR ROBBERY AND ROBBERY WHILE ARMED IN COUNTS FIVE AND SIX, MERGING THEM INTO COUNTS ONE AND THREE. SINCE ROBBERY WAS THE UNDERLYING FELONY UNDER N.J.S.A. 2A:113-1, THE CHARGE OF ROBBERY AS A MATTER OF LAW OF THE STATUTE MUST BE CHARGED [sic] INTO THE MURDER COUNT AS IT WAS THE UNDERLYING FELONY. THE COURT CHARGED DEFENDANT AND SENTENCED HIM SEPARATELY ON THE ROBBERY CHARGE, "ROBBERY" COUNT FIVE AND "ARMED ROBBERY" COUNT SIX. ROBBERY/ARMED ROBBERY WAS THE FACT USED AS THE UNDERLYING FELONY FOR COUNTS ONE AND THREE AND A CONVICTION CANNOT BE OBTAINED FOR FELONY MURDER AND THE UNDELYING [sic] CRIME OF ROBBERY AS IT IS AN INTEGRAL PART OF THE MURDER. DEFENDANT WAS CONVICTED OF ROBBERY AND ARMED ROBBERY (COUNTS FIVE AND SIX) WHICH CONSTITUTE DOUBLE JEOPARDY AS HE WAS TRIED, CONVICTED AND SENTENCED FOR THE SAME OFFENSES MORE THAN ONCE. U.S. CONST. AMEND. FIVE PROTECTS AGAINST MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE WHICH IS ENFORCED AGAINST THE STATES THROUGH THE FOURTEENTH AMENDMENT OF THE U.S. CONST., AND ARTICLE 1[,] PAR. 11 OF THE CONST. OF N.J. (1947). DEFENDANT'S SENTENCE FOR LIFE FOR FELONY MURDER IS ILLEGAL AS IT WAS IMPOSED AGAINST THE 5TH, 14TH AMEND. OF THE U.S. CONST. THE CHARGES ON COUNTS ONE AND THREE, FIVE AND SIX SHOULD BE DISMISSED AND VACATED WITH PREJUDICE. ALTERNATIVELY, DEFENDANT'S SENTENCE FOR MURDER SHOULD BE CHANGED TO SECOND DEGREE MURDER ON COUNTS ONE AND THREE AND COUNTS FIVE AND SIX DISMISSED WITH PREJUDICE UNDER THE 2A CODE OF LAW.
We have carefully reviewed the record in light of these contentions, and we are satisfied that the order under review should be affirmed. Defendant's arguments do not warrant discussion in a written opinion because it would have no precedential value. R. 2:11-3(e)(2).
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