June 7, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HERU ATUM-RA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 1215-81.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012
Before Judges Fisher and Carchman.
In 1982, defendant was indicted and charged with two counts of first-degree murder, second-degree burglary, second-degree possession of a firearm for an unlawful purpose, and third- degree unlawful possession of a firearm.*fn1 Later that year, pursuant to a plea agreement, defendant entered a guilty plea to all counts and was sentenced, on the first murder conviction, to life in prison with twenty-five years of parole ineligibility and, on the second murder conviction, to a concurrent thirty-year prison term subject to a fifteen-year period of parole ineligibility. Lesser concurrent terms were imposed on the other convictions.
Defendant's attempt in 1985 to file a pro se notice of appeal of the judgment of conviction was denied.
Defendant's first petition for post-conviction relief (PCR) was filed on July 2, 1987 and denied on April 19, 1989. We affirmed but remanded for resentencing on the convictions for second-degree burglary and second-degree possession of a handgun for an unlawful purpose. State v. Frazier, No. A-4574-88 (App. Div. May 31, 1991).
Defendant filed a second PCR petition in 2003, claiming that the plea agreement was breached and that he had received the ineffective assistance of counsel when pleading guilty. The PCR judge denied that petition, finding the arguments to be time-barred.
Defendant filed a third PCR petition in 2009, which Judge Stuart Peim denied on October 26, 2010.
Defendant filed a pro se notice of appeal, and the matter was placed on an oral argument sentencing calendar. After hearing argument, this court transferred the matter to the plenary calendar and ordered briefing. Defendant, through counsel, filed a brief, arguing:
I. DEFENDANT SHOULD HAVE BEEN PERMITTED TO WITHDRAW FROM HIS PLEA AS HE WAS NEVER TOLD THAT HE HAD TO RECEIVE A MANDATORY MINIMUM, IN VIOLATION OF STATE V. KOVAK, 91 N.J. 476 (1982) AND STATE V. BAILEY, 371 N.J. Super. 371 (APP. DIV. 1988).
II. DEFENDANT'S LIFE TERM AND TWENTY-FIVE YEAR PAROLE BAR ARE ILLEGAL SINCE THE SENTENCING JUDGE RELIED ON THE PROVISIONS OF THE EXTENDED TERM STATUTE AND DEFENDANT IS NOT ELIGIBLE FOR AN EXTENDED TERM.
Defendant also asserted by way of a pro se supplemental brief without point headings that: his most recent application in the trial court was not a PCR petition but a motion pursuant to Rule 3:21-1 and Rule 3:22-2; Judge Peim abused his discretion in denying that application; he was denied the effective assistance of counsel; and the trial judge imposed a manifestly unjust and illegal sentence.
We find insufficient merit in all defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that we agree with Judge Peim that, among other things:
the arguments posed by defendant in the most recent of his trial court applications were either previously decided or could have been presented and decided in earlier applications; the sentence imposed was legal; the parole ineligibility period of which defendant complains has already been served and his release date is now a matter to be decided by the parole board; and defendant failed to provide sufficient grounds for the withdrawal of his guilty plea in 1982.