On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 95-02-0213 and 95-06-0984.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Alvarez.
Defendant Ian Burton appeals from the denial of a motion to correct illegal sentences that he filed more than thirteen years after the last of the convictions. The sentences at issue are based on crimes charged in two indictments. Because the counts in one of the two indictments were severed for trial, the convictions were returned by three juries. Defendant's sentences were initially imposed in three proceedings that were held, respectively, on April 26, 1996, and January 3 and May 9, 1997.
On defendant's direct appeals from the two trials on Monmouth County Indictment No. 95-02-0213, we affirmed defendant's convictions for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(b); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a; and fourth-degree defacing firearms, N.J.S.A. 2C:39-9e. State v. Burton, Nos. A-1069-96, A-3783-96 (App. Div. Aug. 28, 1998) (slip op. at 2) (Burton I). Although the court affirmed defendant's convictions, we remanded for resentencing in a single proceeding and directed the judge to correct an illegal sentence. Id. at 7-8. In contrast, we rejected two other claims pertinent to defendant's sentence: 1) that his sentence was excessive; and 2) that the jury's decision to convict him of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, was inconsistent with their decision to acquit him of other charges. Id. at 4-8. The Supreme Court denied defendant's petition for certification. 157 N.J. 546 (1998).
On direct appeal from Indictment No. 95-06-0984, we affirmed defendant's convictions for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). State v. Burton, No. A-6963-96 (App. Div. Jan. 28, 1999) (Burton II). We also remanded for resentencing in this case. Id. at 9. The panel determined that because defendant had a prior conviction for a Graves Act offense - possession of a firearm with intent to use it unlawfully against the person of another, N.J.S.A. 2C:39-4a - as a matter of law, N.J.S.A. 2C:43-6c required the judge to sentence him to extended terms under the Graves Act for two of his convictions under Indictment No. 95-06-0984, first-degree armed robbery and first-degree attempted murder. Id. at 6. We held that the prior qualifying conviction was defendant's prior conviction for possession of a handgun with an unlawful purpose under Indictment No. 95-02-0213. Because the panel concluded that the judge was obligated to impose extended term sentences on those counts, the panel had no reason to consider whether it would have been proper to impose a discretionary extended term on one of those convictions, as the judge had apparently done. Id. at 8 n.2. In addition, the panel rejected defendant's claim that the judge erred in allowing the State to file an untimely motion for an extended term and concluded that his sentence was not excessive.
The trial judge resentenced defendant on both indictments on February 11, 1999. The Supreme Court denied certification that April. 158 N.J. 687 (1999).
Defendant filed his first petition for post-conviction relief on May 24, 1999; he raised an issue related to his conviction, not his sentence. After conducting an evidentiary hearing, the trial judge denied the petition, and we affirmed that denial on direct appeal. State v. Burton, No. A-0296-00 (App. Div. Jan. 15, 2002) (Burton III). The Supreme Court denied certification. 172 N.J. 180 (2002).
On June 15, 2007, defendant filed a motion to correct an illegal sentence entered on Indictment No. 95-06-0984 and subsequently a second petition for post-conviction relief. Among the several claims the trial judge rejected were claims that defendant's Graves Act sentence violated due process and that the sentence was illegal. See State v. Burton, No. A-4209- 07 (App. Div. Oct. 20, 2009) (Burton IV) (affirming the denial substantially for the reasons stated by the trial judge), certif. denied, 201 N.J. 442 (2010).
On June 15, 2007, defendant filed a second motion to correct an illegal sentence that was dismissed without prejudice. The motion at issue here was filed on November 23, 2010. Judge DeStefano heard the motion, and on June 17, 2011, he issued a written decision in which he set forth the eight points defendant raised in that petition and explained his reasons for rejecting each claim.
On appeal defendant raises five issues for our consideration:
I. THE LOWER COURT ERRED IN DETERMINING THAT THE FOLLOWING CLAIMS WERE TIME BARRED, BECAUSE THESE CLAIMS CONSTITUTE CHALLENGES TO AN ILLEGAL SENTENCE, WHICH MAY BE RAISED AT ANY TIME. PURSUANT TO R. 3:21-10(b)(5); R. 3:22-2(c) AND R. 2:10-3(5).
II. IN CONSIDERING WHETHER TO SENTENCE DEFENDANT AS A REPEAT GRAVES ACT OFFENDER, THE SENTENCING COURT CONSIDERED CRIMES THAT DEFENDANT WAS NEVER CONVICTED OF AND THE COURT MISTAKENLY BELIEVED DEFENDANT COMMITTED AN ASSAULT WITH A FIREARM. CONSEQUENTLY, DEFENDANT'S EXTENDED TERM SENTENCE AS A REPEAT GRAVES ACT OFFENDER ...