STATE OF NEW JERSEY v. MELVIN MASON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1472-04T41472-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MELVIN MASON,

Defendant-Appellant.
__________________________________

 

Submitted: February 15, 2006 - Decided November 28, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, 98-04-0840.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his petition for post-conviction relief, R. 3:22. We affirm.

In 1999, a jury convicted defendant of murder, second-degree conspiracy, and two weapon crimes, second- and third-degree. After effecting the required mergers, the trial court sentenced defendant, on the murder conviction, to a prison term for life with thirty years of parole ineligibility; and, on the conviction for third-degree unlawful possession of a weapon, to a consecutive five-year term with two-and-one-half years of parole ineligibility.

We affirmed in an unpublished opinion on April 11, 2002 under docket no. A-5805-99. The Supreme Court denied defendant's petition for certification. 174 N.J. 191 (2002).

The petition for post-conviction relief was filed on December 2, 2002. The trial court denied the petition for reasons expressed by Judge Garofolo, on the record on September 20, 2004, and in a written opinion dated September 30, 2004. The order memorializing the denial was entered on October 21, 2004.

On appeal from the denial of his petition for post-conviction relief, defendant raises the following issues, all of which had been before the trial court on the petition:

POINT I THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL WITH REGARD TO THE ADMISSIBILITY OF DEFENDANT'S STATEMENTS MADE IN NEW YORK.

POINT II THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND DUE PROCESS OF THE LAW BY ADMISSION OF HIS STATEMENTS.

POINT III DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, RIGHT TO A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS AND TO DUE PROCESS OF THE LAW SINCE TRIAL COUNSEL FAILED TO REQUEST THAT THE JURY BE CHARGED ON THE LESSER-INCLUDED OFFENSES OF MURDER.

POINT IV THE LOWER COURT ORDER MUST BE REVERSED SINCE COUNSEL FAILED TO MOVE FOR A MISTRIAL BASED UPON PROSECUTORIAL MISCONDUCT.

POINT V THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON OTHER GROUNDS.

POINT VI THE LOWER COURT ORDER DENYING POST-CONVICTION RELIEF MUST BE REVERSED SINCE DEFENDANT RECEIVED AN ILLEGAL SENTENCE.

POINT VII THE LOWER COURT ERRED IN REFUSING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

Based on our review of the record in the light of the arguments advanced by the parties and prevailing legal standards, we are in substantial agreement with the reasons expressed by Judge Garofolo for denying the petition without an evidentiary hearing. We add a word in view of concepts that have developed since the trial court's decision.

The life sentence with thirty-years of parole ineligibility for murder did not violate constitutional standards. See State v. Abdullah, 184 N.J. 497 (2005). Also, for sentencing review purposes regarding the consecutive sentence for third-degree unlawful possession of a weapon, defendant's case was not in the pipeline at the time State v. Natale, 184 N.J. 458 (2005), was decided, and he is therefore not entitled to retroactive application of the Natale rationale. Defendant's appeal from his convictions and the sentences imposed had been concluded long before the date of decision in Natale. A pending petition for post-conviction relief does not reopen the pipeline. See State v. Knight, 145 N.J. 233, 249 (1996). We observe, as well, given the trial court's use of aggravating factors 3, 6, and 9 in determining the sentence on the weapon conviction, see N.J.S.A. 2C:44-1, that there are no special features of this matter warranting further consideration notwithstanding the absence of pipeline retroactivity. See Abdullah, supra, 184 N.J. at 506, n.2, 512-15.

Accordingly, we affirm.

 

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A-1472-04T4

November 28, 2006