NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 2, 2013
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 90-04-0519.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip V. Lago, Designated Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
Before Judges Sapp-Peterson and Sabatino.
Defendant, James Boykins, appeals the denial of his third post-conviction relief (PCR) petition, in which he sought to set aside the discretionary extended sentence imposed by the court relating to his 1993 conviction of certain offenses he committed in February 1990. For the reasons that follow, we affirm the PCR court's decision in part and remand it in part to consider the sentencing impact, if any, of the Supreme Court's recent opinion in State v. Hudson, 209 N.J. 513 (2012).
The sentence arose out of defendant's kidnapping and sexual contact with W.B., committed on February 26, 1990, two days before defendant was tried on Ocean County Indictment Number 153-2-89 (Ocean County Indictment I), for charges of kidnapping and other sexual offenses committed in June 1988. He was convicted of all charges in March 1990 and sentenced on Ocean County Indictment I on September 10, 1990. The court granted the State's motion to impose a discretionary extended term of life imprisonment on the kidnapping charge with a twenty-five-year period of parole ineligibility, in addition to a concurrent twenty-year sentence on the aggravated sexual assault conviction.
A grand jury indicted defendant for the instant February 26, 1990 offenses, under Ocean County Indictment Number 519-4-90 on April 4, 1990 (Ocean County Indictment II), charging him with kidnapping, terroristic threats, and sexual offenses. The trial on those charges commenced in early 1993 and on March 5, 1993, a jury found defendant guilty of kidnapping, sexual contact, and criminal sexual contact. At sentencing on March 31, 1993, the trial court granted the State's motion to impose an extended term on the kidnapping charge of life imprisonment, with a twenty-five-year period of parole ineligibility, to be served consecutive to the sentence he was serving on the Ocean County Indictment I.
On direct appeal, we affirmed defendant's convictions and the sentences imposed on Ocean County Indictment II, without prejudice to defendant filing an "application for gap time credit." State v. Boykins, No. A-5147-93 (App. Div. Nov. 15, 1996) (slip op. at 4). On March 19, 1996, defendant filed his first PCR petition alleging ineffective assistance of trial counsel in connection with Ocean County Indictment II. Defendant claimed his trial counsel failed to do anything to subpoena out-of-state witnesses from New York, whom he contended would have provided testimony that would have refuted the State's charge that he had kidnapped the victim and committed sexual offenses against her. According to defendant, the witnesses were unavailable to appear on the scheduled trial date and had requested a subpoena or other documentation from an attorney to give to their employers, but trial counsel failed to provide anything. The trial court denied the petition and, in an unpublished opinion, we affirmed. State v. Boykins, No. A-4872-97 (App. Div. Nov. 10, 1999).
On December 18, 2003, defendant filed his second PCR petition. The PCR judge denied this petition as procedurally barred pursuant to Rule 3:22-5, because defendant's claim of ineffective assistance of counsel had previously been adjudicated in defendant's first PCR petition. On direct appeal, we affirmed. State v. Boykins, No. A-3727-03 (App. Div. Feb. 6, 2006).
On May 16, 2011, defendant, pro se, filed his third PCR petition. Although captioned as a petition for post-conviction relief, the gravamen of the petition was to correct an illegal sentence based upon defendant's reliance upon State v. Pennington, 418 N.J.Super. 548 (App. Div. 2011), certif. denied, 209 N.J. 595 (2012), decided two months before he filed his petition. The court conducted oral argument on the petition on February 1, 2012 and denied the petition. The court reasoned that the petition, irrespective of its merits, was procedurally barred. The court indicated that it did not have all of the briefs filed on behalf of defendant in connection with his direct appeal and first two PCR petitions, but based upon the submissions submitted on behalf of defendant in the pending PCR petition, was aware that "there were some issues raised with regard to the excessiveness and . . . legality of the sentence" based upon what had been read in the submissions in connection with the pending PCR. Consequently, the court expressed the opinion that the issue of the legality of defendant's sentence "ha[d] been addressed or, certainly could have been addressed by way of direct appeal if it wasn't addressed."
Despite the court's conclusion that the matter was procedurally barred, the court considered the merits of defendant's argument and agreed with the State that Pennington was factually distinguishable, defendant presented no issue of constitutional magnitude, and defendant's ...