March 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RODNEY BULL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 90-07-1263.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010 Before Judges Rodriguez and LeWinn.
Defendant's notice of appeal states that he is appealing the April 22, 2009 order of the trial court denying his motion to correct an illegal sentence. Neither defendant nor the State, however, has provided us with that order; nor do we have a transcript of the proceedings leading to entry of the April 22, 2009 order, or a statement of reasons from the judge who signed it. Despite these deficiencies, we are able to discern from our review of the record that defendant's appeal is without merit. We, therefore, affirm.
Tried to a jury in 1992, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b). The trial evidence, as summarized from our opinion in defendant's first appeal*fn1 , established that he brutally beat, kicked and stomped on a woman he accosted on the street late one night in April 1990; he also held a knife to her throat while dragging her to the site of the assault and demanded money. State v. Bull, No. A-3654-93 (App. Div. July 11, 1995) (slip op. at 5-6), certif. denied, 143 N.J. 320 (1995).
At defendant's sentencing, the State moved for imposition of an extended term, contending that defendant was a persistent offender pursuant to N.J.S.A. 2C:44-3(a), as he had prior convictions for robbery and two burglaries. The sentencing judge found that defendant was eligible for extended-term sentencing based upon his prior record; the judge then found, pursuant to State v. Dunbar, 108 N.J. 80 (1988), that defendant "ha[d] a propensity towards dangerous and persistent criminal conduct[,]" and the charges on which he faced sentencing involved conduct that was "egregious, and certainly horrific to the . . . victim."
The judge found that aggravating factors two, three, six and nine, N.J.S.A. 2C:44-1(a)(2), (3), (6) and (9), "clearly, convincingly and substantially outweigh[ed] the nonexistent mitigating factors," and sentenced defendant to a term of twenty years with a ten-year parole disqualifier on the aggravated assault count; a concurrent sentence of eighteen months on the unlawful possession of a knife count; and a consecutive five-year term on the terroristic threats count. This aggregate sentence of twenty-five years was also made consecutive to any sentence defendant was then serving.
In his direct appeal, defendant raised several claims of trial error and a sentencing point claiming error in the imposition of consecutive sentences and improper findings with respect to aggravating factors. In our opinion, we reversed defendant's conviction for possession of a knife with unlawful purpose because of erroneous jury instructions on that charge. Bull, supra, slip op. at 10-11. We affirmed all other issues, however, including sentence, as "clearly without merit," R. 2:11-3(e)(2), and specifically found "no sentencing error." Id. at 9.
In 2003, we affirmed the denial of defendant's first PCR petition because it "raise[d] issues procedurally barred under R. 3:22-5." State v. Bull, No. A-2513-01 (App. Div. May 14, 2003). In his second PCR petition, filed in October 2003, defendant contended, among other arguments, that the extended-term sentence was imposed "without statutory guidelines or administrative regulations[,]" and violated "the principle of separation of powers and denie[d him] due process." We affirmed the denial of that PCR petition, noting that the contentions raised . . . are barred by: R. 3:22-3 (bar on grounds that PCR is not a substitute for a direct appeal); R. 3:22-4 (bar on grounds that issue not previously raised); and R. 3:22-5 (bar on ground that issue was expressly adjudicated). Most importantly, the petition is barred by virtue of the five-year time bar set by R. 3:22-12(a). Defendant was convicted on October 2, 1992. This petition was filed on October 8, 2003. [State v. Bull, No. A-5673-04 (App. Div. July 9, 2007) (slip op. at 4), certif. denied, 194 N.J. 268 (2008).]
Defendant thereafter filed an application for a writ of habeas corpus in federal court, raising claims of trial error and ineffective assistance of counsel. In an order and opinion issued on September 9, 2009, the court denied this petition as time-barred pursuant to 28 U.S.C.A. § 2244(d). Bull v. Power, 2009 U.S. Dist. LEXIS 82103 (D.N.J. September 9, 2009).
We turn now to the subject of this appeal. As noted, we do not have defendant's motion or the order from which he appeals. We are, however, able to discern the issues presented by the arguments in defendant's brief. He contends:
DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION AND UNDER ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION, AND HIS RIGHTS TO TRIAL BY JURY BASED UPON FACTS NOT FOUND BY A JURY BEYOND A REASONABLE DOUBT.
THE SENTENCE WAS APPLIED IN PROCEDURALLY DEFECTIVE FASHION BASED ON THE COURT FINDING OF IMPERMISSIBLE AGGRAVATED [SIC] FACTORS.
The salient points of defendant's arguments are that the sentencing judge improperly (1) double counted aggravating factors, (2) failed to state on the record how he arrived at the final sentence, (3) failed to articulate the weight he accorded to each aggravating factor found, (4) imposed an extended-term sentence based on a finding that the crime was "horrendous," (5) engaged in a "pattern of impermissible fact finding," and (6) relied upon a 1991 conviction "for the purpose of applying the extended term, which was pending on direct appeal and with full knowledge."
The record before us clearly demonstrates that these contentions were addressed on at least two prior occasions, in defendant's first appeal and in his appeal from the denial of his second PCR petition. We say "at least" because we do not have defendant's first PCR petition and, therefore, cannot say with certainty that these sentencing issues were raised therein.
Nonetheless, it is clear these issues were resolved when we found no "sentencing error" and rejected defendant's sentencing argument as without merit under R. 2:11-3(e)(2), in defendant's first appeal. Bull, supra, No. A-3654-93, slip op. at 9. These issues were again addressed when we found them to be procedurally barred under Rules 3:22-3, -4 and -5, in affirming the denial of his second PCR petition. Bull, supra, No. A-5673-04, slip op. at 4.
Defendant has failed to address why these procedural bars should not be applied in this appeal. We are satisfied that the order of April 22, 2009, denying defendant's motion to correct an illegal sentence, must be affirmed for the same reasons stated in our opinion denying his second PCR petition, which we incorporate herein.