On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 80-03-00920.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Wefing and LeWinn.
Defendant appeals from the denial of his petition for post- conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury convicted defendant in 1981 of four counts of aggravated sexual assault, and one count each of kidnapping, criminal restraint, burglary, possession of a weapon for an unlawful purpose and unlawful possession of a weapon. In October 1981, the trial court sentenced defendant to an aggregate sentence of one hundred years in prison, with a fifty- year period of parole ineligibility. Defendant appealed to this court and included among his contentions on appeal that his sentence was manifestly excessive and unduly punitive and should be reduced. We rejected defendant's arguments on appeal and affirmed his convictions and sentence. State v. Soden, No. A- 904-81T4 (App. Div. Feb. 23, 1983). With respect to his sentence, we wrote:
In light of defendant's record and the attendant circumstances of the crime herein, and having considered the presentence reports and the arguments in the briefs, we are satisfied that the sentences imposed are entirely proper and do not constitute a mistaken exercise of discretion. See State v. Whitaker, 79 N.J. 503 (1979)
[State v. Soden, supra (slip op. at 4-5).]
Defendant petitioned for certification, but the Supreme Court denied his petition. State v. Soden, 94 N.J. 514 (1983). In 1996, fifteen years after his conviction, defendant filed a petition for post-conviction relief. The trial court denied it as untimely. Defendant appealed. Among the issues defendant raised on this appeal was his contention that his sentence was illegal under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). We rejected all of defendant's arguments and affirmed the trial court's denial of his petition for post- conviction relief. State v. Soden, No. A-1197-96T4 (App. Div. Oct. 23, 1998).
In October 2008, ten years after we affirmed the denial of defendant's petition for post-conviction relief, he filed a motion with the trial court, captioning it as a motion to correct an illegal sentence. In his brief, defendant argued that the trial court, by imposing consecutive sentences in the manner in which it did, imposed a "cruel and unusual punishment" in violation of N.J. Const. art. I, ¶ 12 and U.S. Const. amend VIII. The trial court denied defendant's motion and this appeal followed.
Defendant raises the following argument on appeal:
THE SUPERIOR COURT ERRED GREATLY IN DECIDING THAT THE DEFENDANT'S PCR CLAIMS WERE PROCEDURALLY BARRED, (AS THEY HAVE NEVER BEEN HEARD ON THE MERITS), THUS, JUDGE MELLACI HAS T[H]WARTED THIS DEFENDANT'S BASIC FUNDAMENTAL RIGHT TO BRING FORTH COLORABLE CLAIMS FOR PROPER ADJUDICATION.
Defendant's argument in substance if not in form is the same argument he has presented unsuccessfully on several occasions in the past. It is barred both under Rule 3:22-5 and Rule 3:22-12. In our judgment, defendant's arguments ...