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State v. Banda

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 10, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN BANDA, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 95-12-3040.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 3, 2010

Before Judges Payne and Waugh.

Defendant, John Banda, appeals from a determination on his petition for post-conviction relief (PCR) arising from a sentence given on February 16, 1996. At that time, defendant, having pled guilty to fourth-degree interference with the custody of a committed person, N.J.S.A. 2C:13-4b, was sentenced to five years of probation conditioned on service of 270 days in the Camden County Correctional Facility with credit for time served and the remainder suspended, conditioned upon psychological evaluations, no contact with the victim, verification of permanent address, and no early termination of probation. In imposing a probationary term one year longer than the plea agreement stated, the judge noted, both in open court and in the judgment of conviction, a prior conviction in 1991 for sexual assault and unlawful possession of a weapon, whereas those were merely among the charges against defendant. His conviction was for the third-degree crimes of uttering terroristic threats, criminal restraint and possession of a weapon for an unlawful purpose.

Approximately three years after his 1996 sentencing, on April 22, 1999, defendant was charged with violating his probation by committing five new infractions. He pled guilty to that charge on June 29, 1999. At that time, he had been convicted on four of the new charges, and one remained pending. As a result of his plea to the violation of probation, defendant was sentenced to a year in custody, consecutive to any sentence he was presently serving.

On July 16, 2007, defendant filed a petition for PCR, claiming ineffective assistance of counsel as the result of counsel's failure to notice the mistake as to the nature of the 1991 conviction. Defendant stated in his PCR petition:

Petitioner's Public Defender at the time knew or should have known that falsified Camden County prior court history records of Warren County influenced Camden County decision at sentencing which labeled this petitioner unlawfully as a convicted sex offender from Warren County. Petitioner only seeks to have such records corrected.

Similarly, at the hearing in the matter, defendant informed the judge that "[t]he PCR that we're here for now is only, really to correct the records." Finding defendant's position to be meritorious, the judge agreed to enter an amended judgment of conviction that eliminated the reference to sexual assault and unlawful possession of a weapon as the basis for defendant's 1991 conviction. An amended judgment of conviction was entered on May 9, 2008. Defendant has appealed.

On appeal, defendant presents the following arguments:

POINT I

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

POINT II

THE SENTENCE IMPOSED WAS ILLEGAL AND MUST BE VACATED.

POINT III

BECAUSE THE DEFENDANT'S POST-CONVICTION RELIEF PETITION WAS BASED ON THE THEORY THAT THE SENTENCE IMPOSED WAS ILLEGAL, HIS PETITION WAS NOT TIME BARRED. (Not Raised Below.)

POINT IV

REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.

We affirm. In doing so, we note that the error of which defendant complained in his petition for PCR was corrected by the judge considering that petition. The matters raised on appeal were not presented to the PCR judge, and we decline to consider them. State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Moreover, we note that defendant's PCR petition is untimely, having been filed eleven years after defendant was sentenced. No excusable neglect has been demonstrated. The petition is thus barred by Rule 3:22-12.

Defendant argues that the sentence imposed upon him was illegal, and thus the exception to the time limits of Rule 3:22-12 is applicable. However, the fact that the sentencing judge imposed a five-year period of probation upon defendant, to which defendant raised no objection, rather than the four-year period set forth in the plea bargain, does not make an otherwise proper sentence illegal. Moreover, if defendant had in fact objected to the length of the probationary term, that objection should have been voiced in an appeal. Defendant's failure to assert the claim in that fashion bars its consideration in the present procedural setting. See R. 3:22-3 and -4.

As a final matter, we note that defendant violated his probation after three years. Thus, whether an initial term of four or five years was imposed has been rendered irrelevant by defendant's subsequent criminal conduct.

Affirmed.

20100610

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