January 22, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LESTER R. WOOD, III, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 94-04-0939.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2010
Before Judges Gilroy and Simonelli.
Defendant Lester R. Wood, III appeals from the denial of his second petition for post conviction relief (PCR). We affirm.
A grand jury indicted defendant for murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts two and five); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (counts three and six); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count four); and third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven). The charges stemmed from the stabbing death of defendant's estranged wife, the stabbing of his wife's sister, and the stabbing of another person who attempted to intervene.
On October 2, 1995, defendant pled guilty to count one, as amended to manslaughter, N.J.S.A. 2C:11-4(a), and to counts two and five. Pursuant to the plea agreement, on November 11, 1995, the trial court sentenced defendant to a thirty-year term of imprisonment with a fifteen-year period of parole ineligibility on count one, to a consecutive five-year term of imprisonment with a two and one-half year period of parole ineligibility on count five, and to a concurrent five-year term of imprisonment on count two. The court also imposed the appropriate fines and penalties.
On January 2, 1996, defendant appealed his conviction. On April 11, 1996, the appeal was dismissed after defendant's voluntary withdrawal. Defendant's motion to vacate the dismissal and reinstate the appeal was denied.
On May 20, 1997, defendant filed a PCR petition, alleging ineffective assistance of trial counsel. The trial judge denied the petition. Defendant appealed, and we affirmed. State v. Wood, No. A-5589-98 (App. Div. June 21, 2001).
Defendant then filed the present PCR petition, contending that his sentence is illegal because the trial judge applied the wrong aggravating and mitigating factors and improperly imposed a consecutive sentence. The trial judge denied the petition as barred pursuant to Rule 3:22-4, finding that defendant could have challenged his sentence on direct appeal and in his first PCR petition. This appeal followed.
On appeal, defendant raises the following contention:
THE POST-CONVICTION COURT ERRED IN APPLYING R. 3:22-4 PROCEDURAL BAR TO DENY PETITIONER'S MOTION TO CORRECT AN ILLEGAL SENTENCE PER R. 3:22-12.
[A.] DEFENDANT'S SENTENCE(S) AS PRONOUNCED BY THE SENTENCING COURT ARE PATENTLY ILLEGAL, FAILING TO COMPORT TO THE CODE OF CRIMINAL JUSTICE, WARRANTING VACATION WITH REMAND FOR RESENTENCING.
Based on our review of the record and, in light of applicable law, we conclude that defendant's contention is clearly without merit. R. 2:11-3(e)(2). We add the following comments.
Defendant's challenge to his sentence relates to its excessiveness, not its legality. State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). Defendant could and should have raised this challenge on direct appeal. He is procedurally barred from now doing so.
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