September 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID CARSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 88-05-1989.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2010
Before Judges Axelrad and Sapp-Peterson.
Defendant, David Carson, appeals from that portion of the April 21, 2008 Law Division order denying his petition for post-conviction relief (PCR). We affirm.
In July 1989, defendant pled guilty to a nine-count indictment arising out of the armed robbery of two different women. The State reserved the right to speak at sentencing and to seek an extended term. Defendant was sentenced on October 31, 1989, and received a fifty-year aggregate sentence with a twenty-year period of parole ineligibility. In August 2007, defendant filed his motion for PCR and to correct an illegal sentence. Judge Harold Fullilove denied PCR, finding that the motion was time-barred, having been filed beyond the five-year time period set forth under Rule 3:22-12. However, he granted defendant's motion seeking an order correcting the illegally imposed multiple extended terms.
On appeal, defendant raises the following point for our consideration:
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE HIS CLAIMS RAISED WERE OF A CONSTITUTIONAL NATURE AND HE DEMONSTRATED INEFFECTIVE ASSISTANCE OF COUNSEL.
In his supplemental brief, defendant raises the following additional point:
PETITIONER'S PETITION FOR POST-CONVICTION RELIEF SURPASSED [THE] PRIMA FACIE THRESHOLD IN DEMONSTRATING HIS U.S. AND NEW JERSEY CONSTITUTIONAL RIGHTS TO DUE PROCESS AND EFFECTIVE ASSISTANCE OF COUNSEL HAVE BEEN VIOLATED; THUS[,] RELIEF SHOULD HAVE BEEN GRANTED.
We have considered the points raised in light of the record and applicable legal principles and we are satisfied that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons expressed by Judge Fullilove in his written opinion of April 18, 2008. We add the following brief comments.
The plea forms defendant completed reflect that he understood that he was extended-term eligible. Those same forms also reflect that the State promised not to seek an extended term. Nonetheless, one month after defendant entered the guilty pleas, the State filed a formal motion seeking imposition of the extended term. Thus, notwithstanding the plea forms, defendant was aware, at the earliest, two months prior to sentencing and, at the latest, at the time of sentencing, of the State's intention to seek an extended term. The court imposed multiple extended terms resulting in the fifty-year sentence. The State's actions could have been raised on direct appeal. In failing to do so, the issue was not properly before the PCR judge. R. 3:22-4; State v. Murray, 315 N.J. Super. 535, 539 (App. Div. 1998), aff'd and remanded 162 N.J. 240 (2000).
However, at the time defendant entered his guilty pleas, the court carefully explained to defendant that he faced a maximum eighty-five-year period of incarceration, which was significantly greater than the ultimate fifty-year sentence imposed by the court. Nonetheless, Judge Fullilove corrected the illegal sentence by reducing the multiple extended terms to one extended term. Further, Judge Fullilove properly found defendant's claim of ineffective assistance of counsel was procedurally barred pursuant to Rule 3:22-12 and that defendant failed to set forth a basis for the court to relax application of the rule.
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