On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-07-661.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Skillman.
Defendant, Aijalon Arad a/k/a Waymon Brown, appeals from an order of the Law Division denying his third petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1); first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; and third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c. On January 31, 1997, because of his record, defendant was sentenced as a persistent offender, N.J.S.A. 2C:44-3a, to a discretionary extended aggregate term of eighty years imprisonment with thirty years to be served without parole.
On direct appeal, we affirmed defendant's conviction and sentence, finding as to the latter, that the sentencing judge followed the proper standard in imposing an extended term:
Defendant had a prior conviction for first[-]degree armed robbery committed at age 19, for which he received a fifteen year state prison term. Paroled in 1989, he was sentenced in 1991 to probation for a 1983 drug offense. While on probation, he was involved in two school zone drug offenses, for which he was sentenced to five years with a three year period of ineligibility. [State v. Brown, No. A-3961-96 (App. Div. Nov. 6, 1998) (slip op. at 4-5).]
The Supreme Court denied defendant's petition for certification. State v. Brown, 158 N.J. 71 (1999).
Thereafter, defendant filed his first PCR petition, which was denied by the trial court without oral argument, but remanded by this court on February 27, 2003 for further proceedings as required by State v. Rue, 175 N.J. 1 (2002). State v. Brown, No. A-2168-01 (App. Div. Feb. 27, 2003). Following a hearing on October 24, 2003, defendant's petition, stating that "[i]t's this Court's position that the legality of the extended-term sentence was challenged, and affirmed by the Appellate Division . . . however, now that it's being couched . . . in terms of ineffective assistance of counsel, this Court must look at it to determine whether or not trial counsel was ineffective." In denying PCR relief, the judge found "that counsel reviewed certified copies of the judgments of convictions and, in fact, had no basis to argue against those convictions."
We affirmed the denial of PCR, rejecting as without merit, Rule 2:11-3(e)(2), defendant's argument that trial counsel was ineffective because he did not challenge the predicate convictions on which the extended term was based. State v. Brown, A-2474-03 (App. Div. Feb. 24, 2005) (slip op. at 3). The Supreme Court denied certification on May 25, 2005. State v. Brown, 183 N.J. 591 (2005).
Then on February 2, 2006, defendant filed a pro se petition for PCR, his second attempt to correct what he alleged was an illegal sentence. The trial court denied defendant'sapplication, holding that "defendant's sentence comport[s] in all respects with the provisions of applicable statutes . . . and pursuant to the "Extended Term" provisions of N.J.S.A. 2C:43-7." We affirmed, concluding that "[d]efendant's claim of ineffective assistance of counsel for failing to challenge the predicate convictions upon which the extended term was based was adjudicated and rejected in our February 24, 2005 opinion, which affirmed the denial of defendant's first PCR petition." State v. Brown, No. A-5330-05 (App. Div. June 28, 2007) (slip op. at4).
Thereafter, on March 16, 2009, defendant filed his third PCR application to correct an illegal sentence. On April 29, 2009, the Law Division judge issued his written decision denying defendant's request for PCR. He noted that the third petition "allege[s] that the sentence was illegal because the documents which the judge relied upon for imposing an extended sentence were not adequately reviewed by either counsel or the court [and] that one such document referred to the wrong defendant." The judge reviewed defendant's claims raised in the third petition and compared them to the claims raised on direct appeal and in the other petitions. He concluded that defendant had the ...