February 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELIJAH HAMM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 90-03-0395.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012
Before Judges Payne and Simonelli.
Defendant Elijah Hamm appeals from the denial of his third petition for post-conviction relief (PCR). We affirm.
A grand jury indicted defendant for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:2-6 (count one); second-degree possession of a CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1), b(2) and N.J.S.A. 2C:2-6 (count two); third-degree possession of a CDS with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7, -5a and N.J.S.A. 2C:2-6 (count three); first-degree leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 (count four); and first-degree maintaining a CDS production facility, N.J.S.A. 2C:35-4 (count five).
Judge Marilyn Clark granted defendant's motion for a directed verdict on count five, and a jury found defendant guilty on the remaining counts. On December 13, 1990, the judge sentenced defendant to a mandatory term of life imprisonment with a twenty-five-year period of parole ineligibility. The judge also assessed the appropriate fines and penalties.
Defendant appealed his convictions. We merged defendant's convictions on counts two and three and otherwise affirmed. State v. Hamm, No. A-3745-90 (App. Div. June 7, 1993). Our Supreme Court granted certification and remanded for our reconsideration in light of State v. Afanador, 134 N.J. 162 (1993), and State v. Alexander, 136 N.J. 563 (1994). State v. Hamm, 139 N.J. 179 (1994). Following our reconsideration, we re-affirmed defendant's convictions, and our Supreme Court denied certification. State v. Hamm, No. A-3745-90 (App. Div. April 6, 1995), certif. denied, 142 N.J. 450 (1995).
Sometime thereafter, defendant filed his first PCR petition, which the court denied on April 1, 1999. Defendant did not appeal. Instead, on July 8, 1999, he filed a second PCR petition, contending, in part, as follows:
THE COURT ERRED WHEN IT ALLOWED THE STATE TO AMEND THE INDICTMENT, CHARGING THE DEFENDANT WITH BEING A LEADER OF A DRUG TRAFFICKING NETWORK OR KING-PIN WITHOUT FIRST PRESENTING SUCH TO THE GRAND JURY, THE COURT'S ACTIONS WERE IN VIOLATION OF BOTH ARTICLE 1, §§ 8 AND 10 OF THE NEW JERSEY STATE CONSTITUTION, AND THE UNITED STATES [CONSTITUTION] AND FOURTEENTH AMENDMENT.
Judge Clark denied the petition. Defendant appealed, and we affirmed, finding, in part, that defendant's claims were presumptively time-barred by Rule 3:22-12. State v. Hamm, No. A-5719-00 (App. Div. May 5, 2004). (Ra43) Our Supreme Court denied certification. State v. Hamm, 181 N.J. 285 (2004).
Sometime thereafter, defendant filed this third PCR petition. He contended that Judge Clark erred in sua sponte amending the indictment on count four from conspiracy to distribute cocaine to leader of a narcotics trafficking network, thereby violating his right to indictment. Following a hearing, Judge Clark concluded that the petition was time-barred by Rule 3:22-12. Substantively, the judge found the petition lacked merit because the indictment, which she read into the record, clearly charged defendant in count four with first-degree leader of a drug trafficking network. This appeal followed.
On appeal, defendant contends that Judge Clark erred in sua sponte amending the indictment. We have considered this contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Clark in her oral decision rendered on January 15, 2010. However, we make the following brief comments.
"Procedural bars exist in order to promote finality in judicial proceedings." State v. McQuaid, 147 N.J. 464, 483 (1997). To that end, Rule 3:22-5 provides that "[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 prior to the adoption thereof, or in any appeal taken from such proceedings."
Rule 3:22-5 clearly forbids relitigating claims that were previously adjudicated. State v. Marshall, 148 N.J. 89, 144, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). This bar extends even to issues of constitutional dimension. State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993). The Rule 3:22-5 bar will preclude a PCR argument if the issue is identical or substantially equivalent to the issue previously adjudicated on its merits. McQuaid, supra, 147 N.J. at 484 (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S. Ct. 509, 512-13, 30 L. Ed. 2d 438, 444 (1971)).
The contention defendant raises here, that Judge Clark erred in sua sponte amending the indictment, is identical to the contention that was adjudicated on defendant's appeal from the denial of his second PCR petition. Accordingly, it is procedurally barred by Rule 3:22-5.
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