On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-02-823.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lisa.
Defendant appeals from Judge Codey's order of September 8, 2009 denying defendant's "Petition for Post-Conviction Relief to correct an Illegal Sentence."*fn1 In denying the petition the judge implicitly found that defendant's arguments did not support a contention of an illegal sentence, but instead constituted an argument that his sentence was excessive. Accordingly, the judge found the petition barred by Rule 3:21-10(a), because it was a "motion to reduce or change a sentence [which must] be filed not later than 60 days after the date of the judgment of conviction." Defendant's judgment of conviction was initially entered on January 12, 1993, and, after an appeal to this court necessitated a resentencing on one count, defendant was resentenced on March 28, 1996. Therefore, the judge determined that defendant's petition in 2009 was not cognizable. See R. 1:3-4(c) (prohibiting enlargement of time for motions pursuant to Rule 3:21-10(a)).
Defendant is serving an aggregate sentence of life plus forty years imprisonment, subject to a parole disqualifier of fifty years for crimes committed in 1986, including first-degree felony murder, two counts of first-degree kidnapping, two counts of first-degree robbery, first-degree aggravated sexual assault, first-degree attempted murder, and third-degree unlawful possession of a weapon. The crimes arose out of a single incident involving two victims. Acting with others, defendant abducted a man and a woman on the streets of Newark, removed them to several different locations in Newark, repeatedly gang raped the woman and beat her severely. The assailants shot and killed the man, and shot the woman (who survived). Defendant was not the shooter. His conviction for the homicide is for felony murder, not for knowing or purposeful murder.
Prior to filing the petition that is the subject of this appeal, defendant took two direct appeals. In the first, we reversed his conviction for knowing or purposeful murder because of a defect in the accomplice liability jury instruction. We remanded to the trial court, allowing the prosecutor the option of unmerging defendant's felony murder conviction and proceeding with resentencing on that conviction, as authorized by State v. Pennington, 273 N.J. Super. 289, 295-96 (App. Div.), certif. denied, 137 N.J. 313 (1994). State v. Cann, No. A-3878-92 (App. Div. March 6, 1996) (slip op. at 4). We rejected all of defendant's remaining arguments, including that his sentence was manifestly excessive, unduly punitive and not in conformance with the Code of Criminal Justice or case law. Ibid.
On March 28, 1996, at a trial court proceeding on remand, the prosecutor opted not to retry defendant for knowing or purposeful murder. Instead, he requested that the felony murder count be unmerged. The judge reimposed the same sentence for felony murder that had been previously imposed for knowing or purposeful murder, namely life imprisonment with a thirty-year parole disqualifier. In all other respects, defendant's sentence on the other counts remained unchanged. Defendant again appealed. He did not raise any sentencing issues. We affirmed his conviction and sentence as modified. State v. Cann, No. A-4669-95 (App. Div. November 10, 1997).
Prior to the filing of the petition now before us, defendant had also filed other PCR petitions, as well as a federal petition for a writ of habeas corpus. All of those applications were unsuccessful.
In the present appeal, defendant presents these arguments:
POINT I THE TRIAL JUDGE SHOULD NOT BE ALLOWED TO INVOKE THE PROCEDURAL BAR; SINCE THERE IS NO BAR ON CLAIMS OF ILLEGALITY OF A SENTENCE.
POINT II THE SENTENCE IMPOSED IS ILLEGAL BECAUSE THE CONVICTION RELIED ON BY THE COURT AS DEFENDANT'S FIRST GRAVES ACT OFFENSE WAS NOT ACTUALLY A GRAVES ACT OFFENSE PURSUANT TO N.J.S.A. 2C:43-6d.
Defendant's arguments are plainly without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We add these brief comments.
Defendant's entire argument is premised upon the assertion that, in imposing the original sentence and the resentence, Judge Codey mistakenly believed that defendant had previously been convicted of a Graves Act offense and improperly utilized that mistaken finding in determining defendant's sentence. We have reviewed the transcripts of the original sentencing on January 12, 1993 and the resentencing on March 28, 1996. Defendant's assertion is factually incorrect. The judge correctly recited defendant's prior record on each occasion, which included his 1990 conviction for the third-degree crime of the unlawful possession of a sawed-off shotgun. That is not a Graves Act offense, and the judge never described it as a Graves Act offense. The judge commented on each occasion that the Graves Act ...