October 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JASON BAKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 94-06-0667.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Harris and Hoffman.
Defendant Jason Baker appeals from an order dated February 8, 2011, denying his second petition for post-conviction relief (PCR). We affirm.
At age seventeen, defendant committed two murders, consented to waiver of the charges from the incident to the Law Division, and entered into a negotiated plea with the State. As a result, he was sentenced to consecutive life terms with sixty years to be served without parole.
On defendant's direct appeal, we affirmed his convictions and sentence. State v. Baker, No. A-6326-94 (App. Div. October 27, 1997), certif. denied, 153 N.J. 48 (2008). Defendant thereafter sought PCR, which was denied by an order entered on July 28, 2000. We affirmed this order. State v. Baker, No. A-4406-00 (App. Div. October 23, 2002), certif. denied, 175 N.J. 433 (2003).
On July 1, 2010, defendant filed his second PCR petition, along with a motion to withdraw his guilty plea, and a motion for reconsideration of sentence. Finding no merit to defendant's claims, Judge Benjamin C. Telsey denied all applications following oral argument.
On appeal from the denial of his petition, defendant presents the following arguments:
BECAUSE A JUVENILE DEFENDANT WAS MISLED INTO BELIEVING HE HAD PERSONALLY KILLED SOMEONE, AND BASED ON THE TOTALITY OF CIRCUMSTANCES, THE PLEA WAS UNKNOWING; OR THE AGREEMENT WAS AMBIGUOUS AND/OR BREACHED, OR, PURSUANT TO GRAHAM, THE SENTENCE IS UNCONSTITUTIONAL, OR THE OUTSET FINDINGS WERE INAPPROPRIATE. POINT II
THE LOWER COURT ERRED IN MYRIAD ASPECTS. POINT III
IN THE INTEREST OF JUSTICE, THIS COURT SHOULD EXERCISE ORIGINAL JURISDICTION TO RENDER A FINAL RULING AS TO THE APPLICABILITY OF GRAHAM V. FLORIDA TO A JUVENILE OFFENDER WHO DID NOT KILL OR INTEND TO KILL ANYONE, AND WHOSE LIFE-EXCEEDING SENTENCE WAS METED OUT PRIOR TO RECENT DEVELOPMENTS IN PSYCHOLOGY AND BRAIN SCIENCE PROVING FUNDAMENTAL DIFFERENCES EXIST BETWEEN JUVENILE AND ADULT MINDS, AND PRIOR TO DEFENDANT HAVING A CHANCE TO DEMONSTRATE DOCUMENTED GROWTH, MATURITY, AND REHABILITATION.
THE STATE'S RESPONSE IS RIDDLED WITH SELF-CONTRADICTING FALSEHOODS.
DEFENDANT HAS DEMONSTRATED THAT AN ACTUAL INJUSTICE HAS OCCURRED, SO ALL TIME AND PROCEDURAL BARS MUST BE RELAXED.
DEFENDANT'S DOUBLE-LIFE SENTENCE WITH A 60-YEAR PAROLE DISQUALIFIER IS UNCONSTITUTIONAL PURSUANT TO GRAHAM V. FLORIDA, WHICH IS A NEW, CLEARLY ESTABLISHED STANDARD EXEMPT FROM TIME BARS.*fn1
Based on our review of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Telsey in his thorough thirty-page written opinion. We add the following comments.
Preliminarily, we note that the entire petition is time-barred. Pursuant to Rule 3:22-12(a)(1), a PCR petition, other than one to correct an illegal sentence, may not be filed more than five years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay "was due to defendant's excusable neglect." Defendant presents no meritorious argument as to why that time bar should not apply in this case, and we see none.
Judgment of conviction was entered on May 18, 1995, and this petition was filed on July 1, 2010, more than fifteen years later. The five-year period is not stayed or tolled by appeal. State v. Dillard, 208 N.J. Super. 722, 727 (App. Div.), certif. denied, 105 N.J. 527 (1986).
The primary impetus for the subject PCR application was a co-defendant partially changing his story regarding certain events that occurred the day of the murders. To put this development in context, a brief summary of the relevant facts follows. On March 2, 1994, defendant, and two other individuals, William Acevedo and Luis Beltran, broke into the home of an elderly couple, Margaret McLoughlin (Mrs. McLoughlin) and George McLoughlin (Mr. McLoughlin), seeking guns and money. Defendant and Acevedo were seventeen years of age and Beltran was sixteen years of age. At the time of the break-in, only Mrs. McLoughlin was home. Beltran proceeded to kill her, shooting her four times. When Mr. McLoughlin arrived home, defendant waited for him to enter the home and then shot him in the face from two feet away. When Mr. McLoughlin attempted to flee, defendant chased him down and struck him on the head with the butt of the gun. Defendant then kicked him about the head and body. The trio then dragged Mr. McLoughlin back inside the home where Beltran proceeded to stab him numerous times. In Beltran's statement following his arrest, he stated that both he and defendant had stabbed Mr. McLoughlin. Defendant, on the other hand, denied any stabbing, a position he maintained at the time of his plea hearing. The autopsy report listed the cause of death as "gunshot and stab wounds." The report also noted "multiple left-sided rib fractures."
On April 17, 2009, Beltran wrote a letter to defendant's attorney wherein he claimed that he alone stabbed Mr. McLoughlin after defendant and Acevedo had left the McLoughlin home. He stated he came to realize this mistake "recently while reading a copy of [his] statement." Defendant claims this statement constitutes newly discovered evidence that warrants PCR.
Judge Telsey carefully analyzed Beltran's 2009 statement and found it "to lack any credibility." He additionally found that even if the statement were true, "it would have no impact on the outcome of the case." As Judge Telsey explained:
[B]ased on Baker's own admissions, he wanted to kill Mr. McLoughlin. Baker himself inflicted a gunshot wound to Mr. McLoughlin's face and then repeatedly stomped on Mr. McLoughlin's face and beat him with the butt of a revolver, with the purpose of taking Mr. McLoughlin's life. Furthermore, Baker acknowledged that he believed Mr. McLoughlin was dead as a result of his shooting and beating him, thus he accomplished his purpose of murder.
Judge Telsey further noted that defendant would be guilty of the murder of Mr. McLoughlin based upon accomplice liability, even if defendant's shooting and stomping of him did not cause his death.*fn2 See State v. Hakim, 205 N.J. Super. 385, 388 (App. Div. 1985).
In Points I, III, and VI, defendant references the decision in Graham v. Florida, U.S. , 130 S. Ct. 2011, 2030, 176 L. Ed. 825, 845-46 (2010), where the United States Supreme Court held that the Eighth Amendment of the United States Constitution forbids the sentence of life without parole for juvenile offenders who do not commit homicide. In Graham a sixteen year old juvenile was sentenced to life in prison for armed burglary. Id. at , 130 S. Ct. at 2020, 176 L. Ed. at 834. Before the trial court, defendant's counsel did not urge the application of the Graham decision in his briefing or at oral argument.
Because defendant failed to raise the application of the holding in Graham before the trial court, we would normally be disinclined to consider it on appeal. We find it particularly prudent not to consider defendant's arguments based on Graham in light of the latest development of the law relating to juvenile offenders. On June 25, 2012, the United States Supreme Court announced its decision in Miller v. Alabama, U.S. , 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). In Miller, the Supreme Court extended the holding in Graham, and held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Id. at , S. Ct. at 2469, 183 L. Ed. 2d at 423-24.
State v. Arthur 184 N.J. 307, 327 (2005), provides guidance in this instance:
An appellate court ordinarily will not consider issues that were not presented to the trial court, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and an appellate court should be even more hesitant to raise an issue sua sponte that the parties have not had an opportunity to address, see Robbiani v. Burke, 77 N.J. 383, 395 (1978).
Because we anticipate defendant will likely file another application for post-conviction relief in light of Miller, and in light of the above-quoted admonition in Arthur, we decline to address defendant's claim that Graham supports his application for relief. We likewise take no position as to the applicability of Miller. Defendant does have the possibility of parole, albeit not until the age of seventy-seven, the approximate end of his life expectancy.
In his written opinion, Judge Telsey fully addressed each argument raised by defendant in support of his petition. We are satisfied that Judge Telsey correctly concluded that an evidentiary hearing was not warranted on the petition.