June 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY PEOPLES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 96-02-0520.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2012
Before Judges Graves and Koblitz.
Defendant Anthony Peoples appeals from an order dated February 9, 2010, denying his motion to correct an illegal sentence and a subsequent letter decision dated December 15, 2010, denying his motion for reconsideration. We affirm.
More than thirteen years ago, on July 22, 1998, a jury convicted defendant of four counts of first-degree armed robbery, one count of murder, and related offenses. On September 18, 1998, the court imposed an aggregate sentence of life imprisonment plus twenty years with a forty-five-year period of parole ineligibility. Defendant's sentence included a mandatory extended term under the Graves Act, N.J.S.A. 2C:43- 6(c), because he had a prior conviction for armed robbery.
On appeal, defendant presented four arguments: (1) the jury instructions on identification were insufficient; (2) the trial court erred when it failed to instruct the jury on the lesser-included offense of aggravated manslaughter; (3) the court erred when it failed to provide the jury with appropriate instructions for evaluating the credibility of a recanting witness; and (4) the court erred when it imposed consecutive sentences for the murder and armed robbery convictions. In an unreported opinion, we affirmed defendant's convictions, and we determined that his sentence "was fully justified by the facts."
State v. Peoples, No. A-3643-98 (App. Div. Apr. 11, 2001) (slip op. at 21), certif. denied, 169 N.J. 609 (2001). Defendant filed a petition for post-conviction relief (PCR) on October 12, 2001. In his PCR petition, defendant alleged his trial attorney was ineffective and his sentence "was illegal, in view of statutory sentencing options for a murder conviction."
The trial judge denied defendant's PCR petition on December 5, 2003.
On appeal to this court, defendant presented two arguments. First, he claimed "the trial judge's failure to instruct the jury on aggravated manslaughter as a lesser-included offense of murder was reversible error in light of the clear mandate of the New Jersey Supreme Court in State v. Jenkins, 178 N.J. 347 (2004)." Alternatively, defendant argued the matter should be remanded for resentencing on the robbery counts:
Defendant was sentenced to terms for robbery of 20 years, 10 without parole. Because it appears that the recent United States Supreme Court decision in Blakely v. Washington, [542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)], invalidates sentences in New Jersey which are above the presumptive ordinary term where those sentences are based on findings or factors other than prior record which are not found by a jury, defendant's sentences for robbery on the basis of three of four aggravating factors that were not solely findings of a prior record is a violation of his Sixth Amendment right to a trial by jury as well as his Fourteenth Amendment right to due process.
We affirmed the order denying defendant's petition for PCR, State v. Peoples, No. A-4090-03 (App. Div. June 17, 2005), and the Supreme Court denied defendant's petition for certification.
185 N.J. 268 (2005). Defendant then filed a federal habeas corpus petition alleging that he was sentenced in violation of Blakely, which was denied. Peoples v. Cathel, Civ. No. 05-5916, 2006 U.S. Dist. LEXIS 89304, 2006 WL 3419787, (D.N.J. Nov. 21, 2006).
In December 2009, defendant filed a motion pursuant to Rule 3:21-10(b)(5) to correct an illegal sentence. The motion was denied without prejudice on February 9, 2010, because defendant failed to submit any supporting affidavits or documents showing that he was entitled to relief. Defendant's motion for reconsideration was denied on December 15, 2010.
Defendant presents the following arguments on appeal:
THE TRIAL COURT IMPOSED A PENALTY OF A SECOND GRAVES ACT OFFENDER UPON PETITIONER PURSUANT TO THE PERSISTENT OFFENDER ACCOUNTABILITY ACT WITHOUT SUBMITTING THAT FACT TO A JURY TO BE PROVED BEYOND A REASONABLE DOUBT, VIOLATING PETITIONER'S RIGHT TO TRIAL BY JURY AND DUE PROCESS.
PETITIONER WAS INDICTED FOR CERTAIN PERSON'S NOT TO HAVE A WEAPON BY THE STATE AND LIABILITY ATTACHED TO THOSE CHARGES, THE TRIAL COURT ERRED IN NOT DISMISSING THOSE CHARGES BUT INSTEAD ALLOWED THE PROSECUTION TO DISMISS THAT COUNT OF THE INDICTMENT AFTER THE JURY HAD RENDERED ITS VERDICT WHICH WAS PLAIN ERROR AND DENIED PETITIONER HIS RIGHT TO TRIAL BY JURY AND DUE PROCESS.
PETITIONER CONTENDS UNDER THE SIXTH AMENDMENT AND THE FOURTEENTH AMENDMENT EQUAL PROTECTION CLAUSE, THE THRESHOLD QUESTION IS DID THE RETROACTIVITY OF APPRENDI V. NEW JERSEY, WHOSE HOLDING CAUSED INTERVENING CIRCUMSTANCES OF A SUBSTANTIAL AND CONTROLLING EFFECT IN THE LAW APPLY TO THE PETITIONER, WHO WAS ON HIS DIRECT APPEAL WHEN APPRENDI WAS DECIDED BY THE UNITED STATES SUPREME COURT, ALSO BEFORE PETITIONER'S SENTENCE AND CONVICTION BECAME FINAL ON DIRECT APPEAL.
We conclude from our review of the record that these arguments are clearly without merit. R. 2:11-3(e)(2). As this court previously noted, defendant's sentence is "fully justified by the facts." In addition, the trial court correctly concluded that defendant's arguments had either been adjudicated in his prior appeals or could have been presented in those proceedings, and therefore are now barred by Rules 3:22-5 and 3:22-4.
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