September 13, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARNELL DIXON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-06-2287.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2010
Before Judges Sapp-Peterson and Fasciale.
Defendant, Darnell Dixon, appeals from the July 3, 2008 order denying his petition for post-conviction relief (PCR). We affirm.
Following a trial in 1997, defendant was found guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), third-degree unlawful possession of a handgun; N.J.S.A. 2C:39-5b; and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The court subsequently denied defendant's motion for a judgment notwithstanding the verdict or, alternatively, a new trial. At sentencing, the court granted the State's motion to sentence defendant as a persistent offender and impose an extended term. The court sentenced defendant to an aggregate thirty-year custodial term with a ten-year period of parole ineligibility.
In an unreported opinion, we affirmed defendant's conviction and sentence. State v. Dixon, No. A-5906-97 (App. Div. Nov. 8, 1999). The Supreme Court denied defendant's petition for certification. State v. Dixon, 163 N.J. 396 (2000). In June 2000, defendant timely filed a pro se PCR petition. Defendant was assigned counsel, but in January 2002, defendant notified the Office of the Public Defender (OPD) that he was dissatisfied with his assigned counsel's representation and requested that new counsel be assigned. The following month, defendant corresponded with the court, requesting that his PCR petition be "set aside." The court treated the correspondence as an application to withdraw the petition and granted this relief without prejudice to defendant to re-file his petition. Thereafter, defendant continued to correspond with the OPD. Between 2002 and 2006, a number of attorneys from OPD were assigned to represent defendant in connection with the petition, but it does not appear that any formal proceedings occurred. Finally, in April 2006, a new petition was filed on defendant's behalf. The court issued a lengthy opinion denying relief, including an evidentiary hearing. The court found that defendant's petition was time-barred pursuant to Rule 3:22-12 and that "there has been no injustice sufficient to relax the five-year time bar of [Rule] 3:22-12." Nonetheless, the court addressed the merits of defendant's petition and also concluded that defendant failed to meet the standards for post-conviction relief.
Defendant's conviction stemmed from the 1995 shooting of the victim who, according to what defendant reportedly told Michael Swann, attempted to rob him. Another witness, Mark Willis, identified defendant as the victim's shooter. Defendant's girlfriend and mother of his three children, Janell Barnes, testified that defendant was at her house, located in the area where the shooting occurred, around the time the shooting allegedly occurred. She also testified that she heard gunshots and looked out the window, but was unable to see anything because it was foggy and "real misty." At that time, defendant was in the living room with the children. Barnes's stepfather, Robert Arrington, also at Barnes's home that evening, testified that he heard shots. He corroborated Barnes's testimony that defendant was in the living room with the children at the time he heard the shots. Finally, one other witness, Marcel Carter, testified that he had just completed a game of basketball when he heard shots and saw a figure running. He was unable to determine the gender of the person. Fearing that he might get caught in any cross-fire, he went to Barnes's home to get a ride from defendant. He arrived at Barnes's home ten minutes after the shooting, where he found defendant on the sofa with his children.
On appeal, defendant raises the following points for our consideration:
THE COURT ERRED IN FINDING THE PETITION FOR POST[-]CONVICTION RELIEF TIME[-]BARRED.
THE COURT DENIED DEFENDANT THE RIGHT TO BE PRESENT AT EVERY STAGE OF THE TRIAL AND FAILED TO SECURE AND PRESERVE AN IMPARTIAL JURY.
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AND THEREFORE VIOLATED DEFENDANT'S DUE PROCESS RIGHTS BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT A CONVICTION OF THE CRIMES CHARGED.
THE COURT ERRED IN DENYING THE PETITION FOR POST[-]CONVICTION RELIEF BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL, PCR, AND APPELLATE COUNSEL.
THE DEFENDANT'S COUNSEL ON THE MOTION FOR POST[-]CONVICTION RELIEF FAILED TO ADVANCE GROUNDS SOUGHT BY DEFENDANT.
THE COURT ERRED IN DENYING THE MOTION FOR POST[-]CONVICTION RELIEF BECAUSE THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AS TO EACH OF THE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL, PURSUANT TO [RULE] 3:22-10 ON THE BASIS THAT HE PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.
In his pro se supplemental brief, defendant raises the following additional points:
PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO COMPLY WITH [RULE] 3:22-6(d)[.] THEREFORE[,] THIS COURT SHOULD REMAND THIS MATTER TO THE LAW DIVISION FOR A NEW POST-CONVICTION RELIEF PROCEEDING.
DEFENDANT'S PETITION WAS NOT TIME[-]BARRED SO PCR COURT ERRED IN USING THE INJUSTICE STANDARD TO EVALUATE DEFENDANT'S PETITION.
After carefully considering the record and briefs, we are satisfied that all of the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Michael A. Petrolle in his thorough and well-reasoned written opinion of July 3, 2008. We add the following brief comments directed to claims raised on appeal that were not presented before the PCR court.
Defendant contends he was denied due process based upon the trial court's denial of his motion for a judgment of acquittal. This contention was not raised before the PCR judge, nor on direct appeal and is therefore procedurally barred. R. 3:22-4. Defendant also contends the imposition of the extended term required the sentencing judge to make a factual determination not "reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2538, 159 L. Ed. 2d 403, 413-14 (2004) (clarifying "[w]hen a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper authority." (internal citation and quotation marks omitted)).
Defendant was convicted in 1997. On direct appeal, his conviction and the sentence imposed were affirmed in 1999. His petition for certification was denied in 2000.
We recognize that the imposition of an illegal sentence is a proper ground for post-conviction relief under Rule 3:22-2(c) and 3:22-4 and that there is no time limit to the correction of an illegal sentence. State v. Murray, 162 N.J. 240, 245-246 (2000). However, in State v. Natale, 184 N.J. 458 (2005), the Court stated that its decision would only be accorded "[p]ipeline retroactivity," meaning that it would apply "to defendants with cases on direct appeal as of the date of [its] decision and to those defendants who raised Blakely claims at trial or on direct appeal[.]" Id. at 494. Since the Blakely issue was not raised during defendant's trial, nor in his direct appeal, and since his case was not pending appeal at the time the Court decided Natale, his sentence does not fall within the pipeline of retroactivity under Natale. Accordingly, defendant is not entitled to have his sentence reviewed under the principles of Natale. Moreover, in State v. Pierce, 188 N.J. 155, 172 (2006), the Court held that the requisite statutory fact-finding necessary to impose a discretionary extended term "may permissibly be made by a court under Apprendi*fn1 and Blakely."