STATE OF NEW JERSEY v. BRENDA WILEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4543-05T54543-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRENDA WILEY,

Defendant-Appellant.

______________________________________________________

 

Submitted December 13, 2006 - Decided December 29, 2006

Before Judges Wefing and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 91-06-0076-I.

Brenda Wiley, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

In this appeal, we review the denial of defendant's second petition for post-conviction relief (PCR). After careful consideration of the record in light of the contentions raised, we affirm substantially for the reasons set forth by Judge Roger F. Mahon in his written decision of April 4, 2006.

The record on appeal reveals that defendant was fifteen years old in 1990 when she killed her mother and fourteen-year-old brother. After a contested hearing, the Family Part judge waived jurisdiction and defendant was tried in the Law Division, where she was convicted of the purposeful and knowing murders of her brother and mother and sentenced to concurrent life sentences with a thirty-year period of parole ineligibility.

On direct appeal, defendant argued that (1) the Family Part judge erred, procedurally and substantively, in ordering the waiver; (2) her statement to the police should have been excluded; (3) the jury instructions regarding diminished capacity were erroneous; and (4) the proceedings were fundamentally unfair because the State allegedly took a different factual position at the trial than it took at the waiver hearing. We affirmed by way of an unpublished opinion in 1994. The Supreme Court denied certification. 144 N.J. 174 (1996).

Defendant's first PCR petition was denied in 1997. At that time she argued that her counsel was ineffective in failing: (1) to call an expert witness at the waiver hearing; (2) to move to change venue; and (3) to advise defendant regarding the consequences of testifying at the waiver hearing. We affirmed in an unpublished opinion in 1998. The Supreme Court denied certification. 157 N.J. 647 (1999).

Defendant filed a second PCR petition in 2005, over thirteen years after the judgment of conviction. She then argued that (1) new evidence regarding her mental condition at the time of the murders warranted a new waiver hearing or a new trial; (2) the life sentences imposed constituted a violation of the Eighth Amendment; (3) N.J.S.A. 2A:4A-26 unconstitutionally shifted the burden of proof to her at the waiver hearing; and (4) an evidentiary hearing was required to explore her ineffective assistance of counsel arguments. Judge Mahon denied this second PCR petition by way of an order entered on April 4, 2006.

Defendant appealed, asserting that the trial judge erred in denying her second PCR petition because:

I. THE TRIAL COURT ERRED BY NOT ORDERING A SUA SPONTE HEARING INTO HER MENTAL ILLNESS AND IN NOT DOING SO, THUS PRODUCED AN UNJUST RESULT.

II. IMPOSITION OF COURT RULE 4:50-1(B) SHOULD BE APPLIED.

III. BECAUSE WILEY WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL(S) AND BECAUSE WILEY WAS PREJUDICED THEREBY, THE APPELLATE COURT SHOULD GRANT HER MOTION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE WILEY HAS PRESENTED A PRIMA FACIE PROOF THAT SHE HAD BEEN DEPRIVED EFFECTIVE ASSISTANCE OF COUNSEL(S), THE APPELLATE COURT SHOULD GRANT HER AN EVIDENTIARY HEARING.

We find no merit in these contentions.

In a thorough and well-reasoned written decision, Judge Mahon denied defendant's petition, finding it to be procedurally barred due to the absence of excusable neglect or exceptional circumstances. Judge Mahon also concluded that: the medical information presented by defendant did not constitute newly discovered evidence or shed additional light on the issues previously adjudicated; that the life sentence was legal and constitutional, correctly relying upon State v. King, 372 N.J. Super. 227 (App. Div. 2004), certif. denied, 185 N.J. 266 (2005); that N.J.S.A. 2A:4A-26 is constitutional, as determined in State in the Interest of A.L., 271 N.J. Super. 192 (App. Div. 1994); and that defendant's current claims of ineffective assistance of counsel were the same claims previously adjudicated and had merely been "repackaged" in this PCR petition.

 
We affirm substantially for the reasons set forth in Judge Mahon's written decision.

Affirmed.

(continued)

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A-4543-05T5

December 29, 2006