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State of New Jersey v. Clifford J. Graf

August 11, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CLIFFORD J. GRAF, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 85-07-945.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 2, 2011

Before Judges R. B. Coleman and Lihotz.

Defendant Clifford J. Graf, convicted in 1986 of murder, N.J.S.A. 2C:11-3(a)(2); felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3(a); and third-degree unlawful possession of a handgun without first having obtained a permit to carry same, N.J.S.A. 2C:39-5(b) and N.J.S.A. 2C:58-4, appeals pro se from the Law Division's denial of his fourth petition for post-conviction relief (PCR). We affirm.

On March 7, 1986, the trial judge sentenced defendant to an aggregate term of life imprisonment plus four years with a thirty-two year period of parole ineligibility. We affirmed defendant's conviction in an unpublished opinion, State v. Graf, No. A-3940-85 (App. Div. April 14, 1988). The Supreme Court denied defendant's petition for certification, State v. Graf, 113 N.J. 337 (1988).

In 1989, defendant's first petition for PCR was denied by the Law Division. We remanded for an evidentiary hearing, at the conclusion of which the PCR court determined that trial counsel had not been ineffective. In an unpublished opinion, we affirmed the denial of defendant's PCR petition. State v. Graf, No. A-2928-92 (App. Div. Feb. 6, 1996). The Supreme Court denied defendant's petition for certification. State v. Graf, 144 N.J. 589 (1996).

Defendant also filed an application in the United States District Court for the District of New Jersey seeking a writ of habeas corpus. That application was denied on October 31, 1997. Graf v. Pinchak, No. 97-10-98 (D.N.J. Oct. 31, 1997).

On January 21, 1998, defendant filed his second petition for PCR. The Law Division concluded the petition was procedurally barred and dismissed it. We affirmed in an unpublished opinion, State v. Graf, No. A-3434-98 (App. Div. June 26, 2000), following which certification was denied by the Supreme Court. State v. Graf, 169 N.J. 605 (2001).

Defendant filed two federal habeas corpus applications, which were dismissed in due course.*fn1 In the interim, on August 31, 2007, defendant filed a third petition to correct an illegal sentence related to the imposition of consecutive terms. After a hearing, the Law Division denied the petition, reasoning that a Yarbough*fn2 violation does not give rise to an illegal sentence. We heard the matter on the excessive sentencing calendar and affirmed the denial of the petition. State v. Graf, No. A-3387-07 (App. Div. Apr. 29, 2009).

Defendant then filed this petition for PCR, which the Law Division denied on November 16, 2009. Judge Ira E. Kreizman concluded that defendant's petition was time-barred pursuant to Rule 3:22-12, since it was filed more than twenty years after his direct appeal and eighteen-years after the five-year filing period had expired. The judge explained that defendant's sentencing claims, including the asserted violation of Yarbough by double-counting aggravating factors and the not stating separate reasons for imposing consecutive sentences, were not cognizable on PCR as they amounted to excessive sentencing claims, rather than illegal sentencing claims. See State v. Flores, 228 N.J. Super. 586, 588 (App. Div. 1988) (concluding that allegations of improper consideration of aggravating and mitigating factors and consecutive sentencing guidelines were not cognizable on PCR), certif. denied, 115 N.J. 78 (1989). Judge Kreizman also rejected defendant's argument that the time bar should be relaxed due to defendant's excusable neglect, given that he was unaware of a violation of his sentence until recently. The judge analogized defendant's argument to ignorance of the law, which is not excusable neglect. See State v. Mitchell, 126 N.J. 565, 579 (1992). The judge further found that the time bar should not be relaxed in the interest of justice, and observed that "defendant seems to be filing a petition for ineffective assistance of counsel to just receive a second bite at arguing his excessive sentence which was, and should have been, argued on appeal."

In his pro se brief on appeal, defendant raises the following arguments:

POINT I: THE PCR COURT ERRONEOUSLY DENIED GRAF THE ...


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