On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 88-02-0201.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Lisa and Baxter.
Defendant John Rhett appeals from an August 2, 2007 order that denied his first petition for post-conviction relief (PCR). Defendant asserts he should be granted such relief because the new sentence he received after his first, partially successful, direct appeal was the result of "prosecutorial vindictiveness," and because appellate counsel and PCR counsel both rendered ineffective assistance. We reject those contentions and affirm the denial of defendant's PCR petition.
Following a trial by jury, defendant was convicted on November 17, 1988 of the attempted murder of a security guard at the factory where he had previously worked. The jury also convicted defendant of first-degree robbery, finding that he inflicted serious bodily injury upon the security guard in the course of stealing a change machine. Defendant was sentenced as a persistent offender on the attempted murder charge to an extended term of life imprisonment with a twenty-five year period of parole ineligibility, and to an eighteen-year term, with a nine year period of parole ineligibility, on the robbery charge.
Defendant appealed his conviction, arguing that the jury instructions were erroneous, his convictions should have been merged and the sentence was excessive. We affirmed his convictions and sentence. State v. Rhett, No. A-2014-88 (App. Div. December 5, 1990) (slip op. at 27). The Court granted defendant's petition for certification, affirming in part and reversing in part. State v. Rhett, 127 N.J. 3, 9 (1992). In particular, the court reversed and remanded defendant's attempted murder conviction because of errors in the jury instruction, id. at 8, but affirmed defendant's conviction on the first-degree robbery charge. Id. at 9.
On remand, the State moved to amend its prior motion for an extended term of imprisonment on the attempted murder conviction to a motion for an extended term on the robbery conviction. In addition, the State proposed to place defendant's attempted murder charge on the inactive list. Defendant objected, arguing that the State's motion to sentence defendant to an extended term of imprisonment on the armed robbery charge should be rejected as time-barred.*fn1 Defendant also argued that because defendant's armed robbery conviction had been affirmed, and the remand was limited to the attempted murder charge, the State was not free to attempt to attach the extended-term sentence to the robbery conviction. He asserted that on remand the State had only two choices: proceed to trial on the attempted murder charge or move for dismissal of that charge.
The judge rejected defendant's arguments and granted the State's motion to sentence defendant to an extended term of imprisonment on the first-degree robbery charge. On July 7, 1992, the judge imposed a sentence of life imprisonment with a twenty-five year parole ineligibility term. Thus, on remand, defendant received the same sentence on the first-degree robbery conviction that he had earlier received on his attempted murder conviction. At the State's request, the judge placed the attempted murder charge on the inactive list.
Defendant thereafter appealed the resentence, arguing that the extended term sentence imposed upon him for the robbery conviction should be reversed for the reasons he had expressed in the Law Division. He also maintained on appeal that the increase in his sentence on the robbery charge violated principles of double jeopardy, and that his sentence was excessive.*fn2 We rejected defendant's arguments and affirmed the sentence that had been imposed upon remand. State v. Rhett, No. A-3800-92 (App. Div. July 20, 1994). We reasoned:
[t]here was nothing fundamentally unfair or contrary to . . . the Criminal Code in the resentencing in this case. Defendant was not sentenced for attempted murder, but for a particularly heinous first-degree robbery. Every consideration except the intent to kill survived to inform the resentencing, and fully justified the sentence rendered. No legitimate expectations were disappointed. . . . The sentence on remand was substantial, but it was substantially less than the original. . . . The heart of the matter is that no illegality or fundamental unfairness resulted from the shift of the extended-term sentence from the vacated attempted murder conviction to the equally serious robbery conviction. [Id. at 5-6.]
The Supreme Court denied certification on September 26, 1994. State v. Rhett, 138 N.J. 267 (1994).
On October 14, 1994, within weeks of the denial of defendant's petition for certification, the trial judge granted the State's motion to remove defendant's attempted murder ...