On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 99-09-1206.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 9, 2011
Before Judges Cuff and Sapp-Peterson.
Defendant Joseph Austin appeals from an order denying his second petition for post-conviction relief (PCR).*fn1 Defendant is serving a seventy-year term of imprisonment with a thirty-five year period of parole ineligibility for the murder of a twenty- year-old woman. In three points, defendant argues that imposition of an extended Graves Act*fn2 parole ineligibility term is illegal:
Defendant, Asserts that his enhanced sentence Pursuant to The Graves Act Extended Term is Illegal as it violates His Constitutional Right Due to it never being negotiated as an alternate sentence
Defendant, Asserts that he can not be barred Pursuant to R. 3:22-5 previously adjudicated facts, due to him not being sentenced to The Graves Act Extended Term, at the time of his direct appeal. oral arguments
Defendant, Asserts that he was never notified by the prosecuting attorney that an increased sentence Pursuant to N.J.S.A. 2C:43-6 (c) the proper applications were not filed by prosecutors office for Graves Act Extended Term before, during, after plea acceptance. Pursuant to 2C:43-7(8).
A petition to correct an illegal sentence may be filed at any time. R. 3:22-12.*fn3 Nevertheless, "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule . . . or in any appeal taken from such proceedings." R. 3:22-5. It is the ground for relief that must be the same in both proceedings, however, and not merely the claim that the ground supports. See, e.g., State v. Harris, 181 N.J. 391, 494 (2004) (defendant's prosecutorial misconduct claim not barred because the grounds for the claim in successive proceedings differed), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Here, our opinion on direct appeal does not allow us to unequivocally hold that this court fully adjudicated the applicability of the Graves Act and defendant's understanding of the potential sentence.
In any event, defendant's arguments on the merits are without merit. A plain reading of defendant's judgment of conviction reveals that he was sentenced as a first-time offender under the Graves Act, not as a repeat offender, and defendant did not receive an extended term. Furthermore, the transcript of the plea hearing reveals that the judge questioned ...