June 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MURRAY WHITFIELD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 91-05-0667.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 26, 2010
Before Judges Axelrad and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR), filed in 2008, in which he argues that the sentence imposed on him in 1997 was illegal. We affirm.
In August 1990, defendant was incarcerated at New Jersey State Prison, serving sentences imposed for convictions arising from two separate indictments: a sentence of fifteen years with seven and one-half years minimum parole ineligibility for a 1984 robbery conviction, and an aggregate sentence of thirty years with fifteen years minimum parole ineligibility imposed in 1985 as concurrent terms for robbery and kidnapping convictions. Following a prison riot, defendant was one of seven inmates charged with offenses related to the riot. Defendant was convicted of two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) and N.J.S.A. 2C:2-6 (counts three and nine); and third-degree possession of weapons for an unlawful purpose, (count eighteen), N.J.S.A. 2C:39-4(d) and N.J.S.A. 2C:2-6.
Prior to sentencing in 1993, the State filed a motion seeking the imposition of an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a). It is undisputed that defendant was eligible for an extended term under this provision and that this motion was timely filed pursuant to Rule 3:21-4(e), which requires that such motion "shall be filed with the court by the prosecutor within 14 days of the entry of defendant's guilty plea or of the return of the verdict." The court granted the State's motion and imposed an enhanced term of ten years incarceration with a five year period of parole ineligibility on the third-degree aggravated assault conviction (count three). The court also sentenced defendant to terms of five years with two and one-half years period of parole ineligibility on counts nine and eighteen, such terms to run consecutive to each other, consecutive to the sentence imposed on count three and consecutive to the sentence defendant was serving at the time of these offenses.
Defendant appealed his conviction and sentence. In an unpublished opinion, State v. Whitfield, No. A-502-93T4 (App. Div. Apr. 21, 1997), we affirmed his conviction. However, we found error in the trial court's use of a 1981 presentence report that had not been updated. Therefore, we reversed the sentence and "remanded for re-sentencing after receipt of an appropriate presentence report which fully complies with the rules of court and the applicable statute."
At resentencing in 1997, defense counsel objected to the imposition of an extended term as follows:
In regard to sentencing, your Honor, since the entire sentencing process has been reversed and remanded, I am entering my objection to any imposition of an extended term since no new motion for extended term has been presented to the Court and the time has elapsed.
The court rejected this argument, noting that the prosecutor had moved for the imposition of an extended term at the time of the original sentencing and that the defendant was eligible for such sentencing as a persistent offender. N.J.S.A. 2C:44-3(a). The court again sentenced defendant to an extended term on count three, a term of ten years with a five-year period of minimum parole ineligibility. Sentences of five years with a two and one-half year period of parole ineligibility were imposed on counts nine and eighteen. The court ordered that the sentences on counts three and nine were to run consecutive to each other and to the sentence defendant was serving. The sentence on count eighteen was concurrent to those sentences.
Defendant appealed his sentence and the appeal was heard on an excessive sentencing calendar in November 2000. In addition to arguing that the presentence report relied upon was deficient, his defense counsel presented defendant's argument that the State was required to file "a new timely notice for an extended term" after the remand before defendant could be sentenced to an extended term. By order dated November 29, 2000, we affirmed defendant's sentence. State v. Whitfield, No. A-1101-99 (App. Div. Nov. 29, 2000), certif. denied, 168 N.J. 294 (2001).
Defendant filed this PCR petition on August 27, 2008, alleging that his sentence was illegal. The limited issue presented was that the court lacked the authority to sentence defendant to an extended term because the State failed to file a new motion for an extended term after remand. The court found that, under the circumstances presented, the defense had notice and was not surprised that the State was seeking an extended term. Describing the absence of a new motion as a "technical failure," the court denied defendant's petition.
In this appeal, defendant presents the following issues:
THE FINDING BY THE TRIAL COURT OF A "TECHNICAL FAILURE" SHOULD HAVE IMMEDIATELY REQUIRED THAT THE COURT GRANT THE RELIEF SOUGHT BY DEFENDANT AND THE COURT'S ATTEMPT TO CIRCUMVENT THE REQUIREMENT DEFIES BOTH LOGIC AND THE LAW.
THE SUPERIOR COURT HAD JURISDICATION TO DECIDE THE DEFENDANT'S APPLICATION FOR POST-CONVICTION RELIEF ON ITS MERITS.
A. THE TRIAL COURT ERRED IN NOT FOLLOWING IT'S OWN DETERMINATION OF A TECHNICAL VIOLATION THEREBY MAKING THE SENTENCE ILLEGAL.
B. MR. WHITFIELD'S SENTENCE IS ILLEGAL BECAUSE IT WAS IN EXCESS OF THE STATUTORY MAXIMUM PENALTY.
C. MR. WHITFIELD'S SENTENCE IS ILLEGAL BECAUSE IT WAS NOT IMPOSED PURSUANT TO LAW.
THE PROSECUTOR'S FAILURE TO MOVE TO EXTEND THE 14-DAY PERIOD TO FILE A MOTION FOR AN EXTENDED SENTENCE DEPRIVED THE TRIAL COURT OF JURISDICTION TO IMPOSE AN EXTENDED SENTENCE AT DEFENDANT'S RESENTENCING.
THE FAILURE TO FOLLOW ESTABLISHED PRINCIPLES REQUIRES THIS COURT TO REVIEW AND CORRECT THE DETERMINATION OF THE TRIAL COURT.
After considering the record and the arguments of counsel, we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
Defendant's petition is time-barred. Rule 3:22-12(a) provides in pertinent part:
No... petition [for post conviction relief] shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
Defendant's PCR petition was filed in August 2008, eleven years after he was sentenced following remand and eight years after that sentence was affirmed on appeal. He has presented no facts showing that the delay in filing this petition was due to excusable neglect. And as set forth below, contrary to defendant's assertions, the sentence imposed was not illegal. See R. 3:22-12 (stating that a petition to correct an illegal sentence may be filed at any time).
Defendant's petition is also procedurally barred because his argument that the State was required to file a new motion for an extended term after remand was presented and rejected in his direct appeal. R. 3:22-5.
Finally, we are satisfied that, even if not procedurally barred, the argument lacks merit. Although defendant argues that a new "timely" motion was required after remand, he is unable to identify when such a motion would be required to be timely. The only procedural requirement applicable here was that the State file a motion within fourteen days of the defendant's conviction. R. 3:21-4(e). It is undisputed that the State filed a timely motion before defendant was sentenced to an extended term in 1993. Defendant has not disputed the fact that the convictions identified by the State provide appropriate support for sentencing him to an extended term as a persistent offender. Although defendant's sentence was reversed in the first appeal, neither the adequacy of the notice nor the support for the imposition of an extended term was cited as a grounds for reversal. The purpose of a motion for an extended term is to afford defendant adequate notice of the State's intention and the convictions relied upon to support the motion so that defendant has adequate time to prepare opposition, if any, prior to sentencing. Those objectives were satisfied here.
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