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State v. Simons

Superior Court of New Jersey, Appellate Division

December 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
DEWAYNE SIMONS, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 8, 2013

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 95-03-0646.

Dewayne Simons, appellant pro se.

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant County Prosecutor, of counsel and on the brief).

Before Judges Messano and Sabatino.

PER CURIAM

Following a waiver hearing in the Family Part, defendant Dewayne Simons was convicted of knowing, purposeful murder and other crimes. He was sentenced to life imprisonment with a thirty-year period of parole ineligibility. We affirmed defendant's conviction in an unpublished opinion, State v. Simons, No. A-0309-96 (App. Div. Feb. 8, 1999), and his petition for certification was denied. 162 N.J. 130 (1999). We subsequently affirmed the denial of defendant's first petition for post-conviction relief (PCR), State v. Simons, No. A-5015-02 (App. Div. Oct. 31, 2005), and the Court denied his petition for certification. 187 N.J. 82 (2006). We also affirmed the denial of defendant's second PCR petition, State v. Simons, No. A-0998-07 (App. Div. Nov. 26, 2008), and the Court again denied his petition for certification. 198 N.J. 313 (2009).

On September 7, 2012, defendant filed a motion for a change of sentence pursuant to Rule 3:21-10(b)(4) and (5).[1] Defendant's certification included exhibits reflecting his participation in numerous programs and educational opportunities while incarcerated.

In a brief letter opinion, Judge Kyran Connor noted the "gravamen" of defendant's argument was that his sentence "was not authorized by law, " because "a sentence of life imprisonment [was] not a sentence 'to a specific term of years.'" See N.J.S.A. 2C:11-3(b)(1) (1999) (an individual convicted of murder "shall . . . be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole").

While finding defendant's argument "interesting, " Judge Connor concluded that "the statute obviously contemplates that the rest of your life is in fact a specific term of years —even though the actual number of years will not be known until the day you die." The judge also determined that defendant's other contentions "raise[d] issues well beyond the scope of [Rule] 3:21-10, " and were "either . . . addressed or could have been addressed on [defendant's] direct appeal or in [his] petitions for post-conviction relief." Judge Connor denied the motion and this appeal followed.

Before us, defendant raises the following points for our consideration:

POINT I

DEFENDANT WAS A JUVENILE, BUT HIS CASE WAS WAIVED UP FROM FAMILY COURT TO ADULT[, ] HE WAS SENTENCED AND THE COURT FOUND NO MITIGATING FACTORS, WHICH ...

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