STATE OF NEW JERSEY v. GARY DAVIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0708-05T10708-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY DAVIS,

Defendant-Appellant.

_________________________________________

 

Submitted October 17, 2006 - Decided December 6, 2006-

Before Judges Weissbard and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Passaic County,

Ind. No. 92-10-1202.

Gary Davis, appellant pro se.

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Christopher W. Hsieh,

Senior Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Gary Davis appeals the denial of his second petition for post-conviction relief (PCR) without assignment of counsel and without a hearing. We affirm.

In our opinion of November 12, 1997, affirming defendant's conviction on direct appeal, we summarized the matter as follows:

On October 29, 1992, defendant was charged with second degree burglary of an automobile, two counts of armed robbery (first degree), fourth degree aggravated assault, terroristic threat (third degree), possession of a firearm with purpose to use it unlawfully (second degree), and unlawful possession of a handgun (third degree). On July 24, 1995, the trial court denied defendant's motion to dismiss the indictment on the ground that his right to a speedy trial had been violated.

After a jury trial in October 1995, defendant was convicted of the burglary and terroristic threat charges. He was found guilty of two counts of lesser included second degree robbery following acquittal on the two first degree robbery charges. He was also acquitted of the aggravated assault charge, and both weapon charges.

Defendant was sentenced to a ten-year prison term with five years of parole ineligibility for the burglary conviction, and a concurrent extended term (persistent offender) of twenty years with ten years of parole ineligibility for the robbery of the second victim, with which the terroristic threat conviction was merged. VCCB penalties aggregating $250 were ordered.

On that first appeal, defendant raised three issues, none of which concerned his sentence. We found the issues presented to be without merit. The Supreme Court denied certification. State v. Davis, 156 N.J. 406 (1998).

Defendant then filed his first PCR, raising the following issues:

POINT I

THERE ARE NO ISSUES WHICH ARE PRECLUDED FROM BEING RAISED IN A POST-CONVICTION RELIEF HEARING.

POINT II

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND ARTICLE I,

10 OF THE NEW JERSEY CONSTITUTION AND IS ENTITLED TO A FULL EVIDENTIARY HEARING.

A. TRIAL COUNSEL FAILED TO CONDUCT AN INDEPENDENT INVESTIGATION OF THE STATE'S CASE, AND FAILED TO REQUEST A WADE HEARING TO CHALLENGE THE EXTREMELY SUGGESTIVE POLICE PROCEDURE USED TO OBTAIN THE OUT-OF-COURT IDENTIFICATION OF ELIZABETH REMERES AND MELISSA NAVAREZ.

B. TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTOR LEADING HIS WITNESSES, AND FAILED TO OBJECT TO STATEMENTS MADE WHICH CONSTITUTED INADMISSIBLE HEARSAY.

POINT III

THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE FAILED TO DEFINE AN ELEMENT OF SOME OF THE OFFENSES CHARGED WHEN INSTRUCTING THE JURY AND THUS, VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND DUE PROCESS.

POINT IV

THE TRIAL COURT ERRED IN (1) DENYING DEFENSE COUNSEL'S MOTION TO DISMISS THE ROBBERY COUNT PERTAINING TO ELIZABETH REMERES, AND (2) COMMITTED REVERSIBLE ERROR BY FAILING TO CHARGE THEFT TO THE JURY AS A LESSER INCLUDED OFFENSE IN ITS ROBBERY INSTRUCTION, THEREBY, DENYING DEFENDANT'S RIGHT TO DUE PROCESS.

POINT V

THE TRIAL COURT'S IDENTIFICATION INSTRUCTION TO THE JURY WAS INSUFFICIENT AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

POINT VI

THE TRIAL COURT ERRED IN IMPOSING A CONSECUTIVE SENTENCE, THEREFORE, THE SENTENCE CAN NOT [sic] STAND.

POINT VII

DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

After assignment of counsel, the following issues were raised:

POINT I

THE WITHIN MATTER IS NOT PROCEDURALLY BARRED.

A. THE WITHIN MATTER IS NO[T] PROCEDURALLY BARRED BY R. 3:22-12.

B. DUE TO THE ALLEGATIONS OF INEFFECTIVE APPELLATE COUNSEL SET FORTH HEREIN, THE PETITION IS NOT PROCEDURALLY BARRED UNDER EITHER R. 3:22-4, OR R. 3:22-5.

POINT II

THE DEFENDANT HAS SET FORTH A PRIMA FACIE CLAIM OF INEFFECTIVENESS OF TRIAL COUNSEL AND IS ENTITLED TO A FULL EVIDENTIARY HEARING TO DETERMINE WHETHER HE SHOULD BE AFFORDED A NEW TRIAL.

A. IN EVALUATING THE PETITIONER'S CLAIMS, THIS COURT MUST VIEW SAME IN THE LIGHT MOST FAVORABLE TO THE PETITIONER.

B. THE PERFORMANCE OF THE PETITIONER'S TRIAL COUNSEL WAS CLEARLY DEFICIENT AND HAD COUNSEL'S PERFORMANCE BEEN OTHERWISE, THE RESULTS HEREIN WOULD HAVE BEEN DIFFERENT.

C. THE PERFORMANCE OF THE PETITIONER'S TRIAL COUNSEL DURING PLEA DISCUSSION WAS INEFFECTIVE AND AS SUCH, THE PETITIONER IS ENTITLED TO AN EVIDENTIARY HEARING AS TO SAME, OR IN THE ALTERNATIVE, IS ENTITLED TO THE BENEFIT OF THE PLEA BARGAIN.

Following a non-evidentiary hearing, defendant's petition was denied. On appeal, defendant raised a single issue that "the court erred when it refused to provide an evidentiary hearing." In affirming the denial, we concluded that certain issues were procedurally barred, R. 3:22-4, and the judge's ruling as to trial and appellate counsel's deficiencies were "substantially correct." Concerning defendant's attack on his consecutive sentences, we noted that "a claim that a sentence is illegal may always be raised. See R. 3:22-12; State v. Levine, 253 N.J. Super. 149, 155-56 (App. Div. 1992)." We continued, however, by stating: "We discern no merit in defendant's claim in that regard, however." With respect to the parameters of defendant's sentence claim, the judge in the first PCR hearing stated:

Petitioner argues that [the] concurrent sentences imposed by the trial [court] [were] improper and that the trial court's fail[ure] to state its reasons for imposing the consecutive sentences was improper, in that the trial court failed to state the reason for imposing the consecutive sentences rather than concurrent.

One, once again these issues were addressed by the Appellate Division. The sentence was upheld and this [motion] is denied for all of the foregoing reasons[.]

We note that the judge appears to have been in error in finding that the consecutive sentence issue was addressed in our opinion on the direct appeal. The issue was not raised and was not decided. Yet, as noted, it was raised and decided on the first PCR appeal.

The appeal presently before us involves what defendant styled "Defendant Motion To Correct An Illegal Sentence. R. 3:22-12." It is, in practical effect, a PCR petition. Defendant's pro se brief in support of the petition advanced the following issues:

POINT I

THE CONSIDERATION OF THE WEAPON CHARGES OF WHICH MOVANT/DEFENDANT WAS ACQUITTED BY THE JURY AND THE FAILURE TO MERGE THE CRIMES ARISING OUT OF A SINGLE ACT OF WHICH MOVANT/DEFENDANT WAS CONVICTED RENDERS THE SENTENCE IMPOSED ILLEGAL.

POINT II

THE SENTENCE IMPOSED BY THE TRIAL COURT VIOLATES DEFENDANT'S RIGHT TO A JURY TRIAL UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

Included within defendant's first point argument is the following:

Even more egregious is the fact that the Sentencing Court illegally ran consecutive, the sentences of two crimes that comprised the same act. In State v. Barnes, 54 N.J. 1, 10 (1969), the New Jersey Supreme Court held that where the defendant is convicted on a two-count indictment of two offenses of receiving stolen goods, the burden is on the State to prove that the two receipts were separate, and in the absence of such proof, the sentence must run concurrently. See also State v. Morton, 136 N.J. Super. 188 (App. Div. 1975), aff'd, 73 N.J. 79 (1977) (defendant convicted of two separate crimes arising from the same act, which neither merge nor where one is a lesser included offense, namely assault and battery upon a police officer and atrocious assault and battery upon the same officer, may only be sentenced for one of these crimes).

In the case, sub judice, the proofs offered at trial established that the crimes for which movant was convicted arose out of a single act. The two victims were in the same location. One victim who was in a telephone booth testified that movant only asked her how long she was going to be on the telephone or was she finished. This "victim" testified further that nothing was taken from her. The second victim testified that her pocketbook was taken by movant. Under these circumstances the failure to have the sentences ran [sic] concurrent renders the sentence imposed illegal.

Defendant's second point invokes State v. Natale, 184 N.J. 458 (2005), in challenging his greater than presumptive terms. His third point has no heading but appears to attack the trial judge's application of aggravating factors, as well as repeating his Blakely/Natale argument.

In denying the current petition without argument and without a hearing, the judge, after referencing the prior appeals, simply stated that it did "not raise any new issues." Although we disagree in part with that assessment, we affirm.

Defendant's argument based on the trial judge's failure to state reasons for imposition of consecutive sentences, as required by State v. Dunbar, 108 N.J. 80, 90-91 (1987), was addressed in our prior PCR appeal opinion, quoted above. The judge's omission of the required explanation did not render the sentence illegal, as that concept is explained in State v. Levine, supra, cited in our decision. Even more recently in State v. Murray, 162 N.J. 240 (2000), the Court addressed the meaning of the term "illegal sentence." To render a sentence "illegal," the sentence must either exceed the statutory maximum for the offense, id. at 246-47, or be otherwise "imposed not in accordance with the law." Id. at 47. The latter category includes dispositions not authorized by the Code or failure of the sentence "to satisfy required presentencing conditions." Ibid. The examples provided require a conclusion that defendant's sentence claim does not fall into the limited category of "illegal" sentences. See also State v. Mitchell, 126 N.J. 565, 577-78 (1992).

With respect to defendant's claim based on Natale, that case and its holding only were given "pipeline" retroactivity, Natale, supra, 184 N.J. at 494-495, and are not available to defendant at this juncture.

Defendant's generalized attack on the sentencing, focusing on the judge's failure to explain aggravating factors, also does not render the sentence illegal. As a result, defendant's claim is out of time, his petition having been filed more than five years after his sentencing and there having been no showing of excusable neglect. R. 3:22-12(a); see State v. Murray, supra, 162 N.J. at 249 (emphasizing the reasons behind the "rigorous five-year time limit for filing PCR petitions").

 
Affirmed.

Certification was denied by the Supreme Court in State v. Davis, 178 N.J. 35 (2003).

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

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A-0708-05T1

December 6, 2006