June 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JASON WILKINS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 98-02-0108.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and Grall.
Defendant was charged with multiple offenses arising out of the armed entry into the victims' home on November 22, 1997. During the course of this home invasion by defendant and two others, one victim was beaten and shot and two others were tied up while defendant and his cohorts ransacked the house, stealing cash and personal property before departing. In 2000, after two earlier mistrials, defendant was convicted at trial of second-degree burglary, N.J.S.A. 2C:18-2(a)(1), two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2), four counts of third-degree criminal restraint, N.J.S.A. 2C:13-2(a)(1), third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), and fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1). Judge Victor Friedman imposed an aggregate twenty-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6(c).
Defendant filed a direct appeal. We affirmed. State v. Wilkins, No. A-1739-00 (App. Div. Oct. 20, 2003). The Supreme Court denied defendant's petition for certification. 178 N.J. 454 (2004).
In 2004, defendant filed a post-conviction relief (PCR) petition, which was heard and denied in 2006 by Judge Thomas S. Smith, for reasons set forth in a written opinion. Defendant appealed, arguing that the State failed to establish all the elements of the offenses charged, that his trial attorney failed to object to an out-of-court identification, that his trial attorney failed to produce certain witnesses to testify, that his trial attorney did not attack the credibility of a witness, that the State failed to produce a written statement of a witness who identified a person other than defendant as the individual who shot one of the victims, that the trial judge improperly used aggravating factors to increase the sentence above the former presumptive term, and that the aggregate of all errors warranted relief from his conviction. We rejected all these arguments and affirmed the denial of the PCR petition. State v. Wilkins, No. A-6526-05 (App. Div. Oct. 31, 2007). The Supreme Court denied certification. 195 N.J. 422 (2008).
In 2009, defendant moved for the correction of what he claimed was an illegal sentence. The motion was denied by Judge Jeanne T. Covert for reasons set forth in a written opinion.
Defendant appeals, arguing:
IMPOSITION OF NERA PERIODS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTIONS FOR BURGLARY, ROBBERY AND CRIMINAL RESTRAINT, ON COUNTS ONE, TWO, THREE, FOUR AND FIVE, WERE ILLEGAL.
We reject this argument and affirm.
In her written opinion, Judge Covert determined that defendant's arguments were procedurally barred because they were either previously raised and determined or they should have been previously raised. We need not consider this determination because we agree that the sentence was not illegal.
In this appeal, defendant argues that Judge Friedman erred in imposing a period of parole ineligibility pursuant to NERA because the version of NERA in effect at the time of his conviction required the jury to determine that defendant had committed a "violent crime, " meaning "any crime in which the actor 'uses or threatens the immediate use of a deadly weapon.'" State v. Johnson, 166 N.J. 523, 545 (2001) (quoting N.J.S.A. 2C:43-7.2(d)). In rejecting this argument, Judge Covert determined that defendant could not take advantage of the Court's holding in Johnson because, although defendant had an appeal pending at the time Johnson was decided, he had not argued this particular point. We need not decide whether this was a proper basis for denying defendant's motion for correction of the sentence because we agree with Judge Covert's disposition that Johnson provides no benefit for defendant. That is, Judge Covert held, and we agree, that the jury's guilty verdict on the burglary, armed robbery, and other offenses, demonstrated the jury's crediting of evidence that would affirmatively answer the question of whether defendant had committed a "violent crime."
In that regard we affirm substantially for the reasons set forth in Judge Covert's written opinion Affirmed.