October 30, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SHAWN PETERSEN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-06-0592.
Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
Before Judges Harris and Guadagno.
Defendant Shawn Petersen appeals from the July 6, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). We agree with the PCR court that defendant did not suffer ineffective assistance of counsel, however, we remand for resentencing with the consent of the State.
During a two-week period between the end of January and beginning of February 1999, defendant committed numerous armed robberies. Two of the robberies took place in Bergen County, eight to ten took place in Hudson County, and two took place in Passaic County. Defendant was indicted and prosecuted in each county.
In Bergen County, defendant pled guilty to two counts of first-degree robbery and was sentenced on November 12, 1999, to concurrent, eighteen-year terms, each with a parole ineligibility term, as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant also pled guilty in Hudson County and on November 16, 1999, he received concurrent fifteen-year sentences. The Bergen and Hudson sentences ran concurrent with each other.
Defendant resolved the Passaic County charges last by pleading guilty to two counts of first-degree armed robbery. On August 4, 2000, the court found defendant qualified for an extended term by virtue of his prior convictions in Hudson and Bergen counties, and imposed two concurrent twenty-five-year prison terms, to run concurrent with his Bergen and Hudson County sentences. As to both terms, defendant's judgment of conviction provided: "Pursuant to NO EARLY RELEASE ACT – 85% LAW APPLIES."
Defendant filed PCR petitions in all three counties raising similar claims. In Bergen County, defendant argued that his petition, filed on February 20, 2009, should not be time-barred. Defendant also claimed he was denied the effective assistance of trial counsel because his attorney failed to file a motion to consolidate the charges from the three counties and he did not file a direct appeal and/or a timely PCR petition.
The court considered the matter on the merits and found that defendant had not been denied the effective assistance of trial counsel. The court noted that, under the plea agreement negotiated by defendant's attorney, seven of the nine counts of the indictment had been dismissed and the court had imposed concurrent, eighteen-year terms, rather than the concurrent, twenty-year terms permitted by the agreement. Defendant appealed and we affirmed stating:
We are satisfied that defendant was not denied the effective assistance of PCR counsel. Even assuming that PCR counsel erred in his handling of this matter, defendant has not shown that the PCR court would have reached a different decision had counsel handled the matter along the lines that defendant suggests.
According to the State, defendant was charged with the commission of twelve separate armed robberies on four days over ten weeks in Bergen, Hudson and Passaic counties. As the PCR court found, it is highly unlikely that a shorter sentence would have been imposed on the Bergen County charges if they had been consolidated with the charges pending in Hudson and Passaic counties. Indeed, the sentencing judge might have been less likely to impose concurrent, eighteen-year terms if faced with the multiplicity of charges from other counties.
Moreover, as the PCR court pointed out, defendant's attorney successfully negotiated a plea that led to the dismissal of seven of the nine charges at issue in this case. Counsel also succeeded in convincing the court to impose an eighteen-year sentence, rather than the twenty years permitted by the plea agreement. We are satisfied that, under these circumstances, it is highly improbable that a shorter sentence would have been imposed even if defendant's attorney had raised the points defendant says should have been raised at sentencing.
[State v. Peterson, No. A-2577-09 (App. Div. Jan. 19, 2011) (slip op. at 7-8).]
The Supreme Court denied defendant's petition for certification on June 14, 2011. 207 N.J. 35 (2011).
In Hudson County, defendant filed a PCR petition on March 5, 2009, seeking to vacate his sentence. In his petition, defendant again claimed he was denied the effective assistance of counsel as his trial counsel failed to file a motion to consolidate all the indictments from three counties, failed to file a notice of appeal, and failed to file a timely PCR petition. A hearing was held on October 22, 2009, at the conclusion of which the PCR court denied defendant's petition as both out-of-time, Rule 3:22-12(a), and substantively lacking in merit.
Defendant appealed and we affirmed. State v. Peterson, No. A-5390-09 (App. Div. July 3, 2012). The Supreme Court denied defendant's petition for certification on January 14, 2013. 213 N.J. 567 (2013).
Defendant filed the instant PCR petition in Passaic County on February 17, 2009, raising similar ineffective assistance arguments to those he presented in Bergen and in Hudson. That PRC petition was denied on July 2, 2010. On appeal, defendant argues:
THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT PETITIONER'S MOTION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED PURSUANT TO RULE 3:22-12.
THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM POST CONVICTION RELIEF COUNSEL.
We have considered these issues and find them of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). However, defendant filed a supplemental pro se brief presenting two arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION AS HE DID ESTABLISH EXCUSABLE NEGLECT IN ORDER TO RELAX TIME BAR PURSUANT TO RULE 3:22-12 AND INEFFECTIVE ASSISTANCE OF COUNSEL DEMAND A RELAXATION "IN THE INTEREST OF JUSTICE.
THE TRIAL COURT ERRED BY IMPOSING AN ILLEGAL SENTENCE NOT ALLOWED AND CONTRADICTORY OF RULE 3:21-4(E) AND RULE 2:10-3.
Although we reject defendant's claim of ineffective assistance, we agree that his parole ineligibility pursuant to NERA should not have applied to the entire twenty-five-year extended term sentence.
The original No Early Release Act (pre-amendment NERA), L. 1997, c. 117, § 2, was enacted in 1997 and provided for a mandatory minimum prison term of eighty-five percent of the sentence imposed for first- and second-degree violent crimes. The Legislature amended NERA, effective June 29, 2001, to require the minimum parole ineligibility period to be calculated based upon the sentence actually imposed without regard to whether it was an ordinary or an extended sentence. N.J.S.A. 2C:43-7.2(b), L. 2001, c. 129, § 1.
In State v. Meekins, 180 N.J. 321, 322 (2004), the Court held "that when applying pre-amendment NERA to an extended term sentence, the trial court shall limit defendant's parole ineligibility period to [eighty-five percent] of the maximum ordinary term sentence." Defendant argues correctly that the ordinary maximum term for his crime is twenty years and eighty-five percent of twenty years is seventeen and one-half years. Therefore, an amended judgment of conviction must be entered to reflect a parole ineligibility term of seventeen and one-half years.
An illegal sentence is one "in excess of or otherwise not in accordance with the sentence authorized by law[.]" R. 3:22-2(c); State v. Acevedo, 205 N.J. 40, 45 (2011); State v. Murray, 162 N.J. 240, 247 (2000). Although defendant's sentence was imposed more than thirteen years ago, an illegal sentence may be corrected at any time. R. 3:21-10(b)(5); State v. Sheppard, 125 N.J.Super. 332, 336 (App. Div.), certif. denied, 64 N.J. 318 (1973).
The July 6, 2010 order denying post-conviction relief is affirmed, however the matter is remanded for resentencing in accordance with this opinion. We do not retain jurisdiction.