STATE OF NEW JERSEY v. JAMES H. TILMON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4702-04T54702-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES H. TILMON,

Defendant-Appellant.

_____________________________________________________________

 

Submitted January 25, 2006 - Decided February 16, 2006

Before Judges Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Burlington County, Ind. No.

88-01-0079-I.

James H. Tilmon, appellant pro se.

Robert D. Bernardi, Burlington County Prosecutor,

attorney for respondent (Jennifer B. Paszkiewicz,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Tilmon appeals from an order entered on April 13, 2005, denying his third petition for post conviction relief (PCR). On appeal, defendant claims, as he did in the trial court, that he received an illegal sentence. We disagree and now affirm.

Defendant has presented the following arguments:

POINT I

WHEN DEFENDANT PLED GUILTY TO AGGRAVATED SEXUAL ASSAULT, DEFENDANT BECAME STRICTLY LIABLE FOR FELONY MURDER, AN ERRONEOUS RESULT WHEN CONSIDERING THAT A JURY HAD DETERMINED THAT DEFENDANT WAS GUILTY OF AGGRAVATED MANSLAUGHTER.

POINT II

DEFENDANT WAS WRONGLY CONVICTED AND SENTENCED FOR BOTH AN AGGRAVATED MANSLAUGHTER AND THE STRICT LIABILITY CRIME OF FELONY MURDER WHEN ONLY ONE DEATH OCCURRED.

POINT III

THE TRIAL COURT ERRED WHEN THE COURT UTILIZED DEFENDANT'S AGGRAVATED MANSLAUGHTER CONVICTION AS THE HOMICIDE ELEMENT REQUIRED FOR THE CONVICTION OF THE UNDERLYING OF [sic] AGGRAVATED SEXUAL ASSAULT. THEREBY RAISING DEFENDANT'S AGGRAVATED MANSLAUGHTER CONVICTION TO MURDER.

POINT IV

DEFENDANT'S CONVICTION FOR THE LESSER INCLUDED OFFENSE OF AGGRAVATED SEXUAL ASSAULT MUST BE MERGED WITH THE GREATER OFFENSE.

We have considered each of these arguments in light of the record, the briefs filed, and the applicable law, and we conclude that defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

In a prior decision, we affirmed defendant's conviction for aggravated manslaughter and the twenty-year prison term imposed for that conviction, but we reversed defendant's felony murder and aggravated sexual assault convictions. See State v. Tilmon, No. A-4947-88 (App. Div. November 21, 1990) (slip op. at 19).

On March 16, 1992, pursuant to a negotiated plea, defendant entered a guilty plea to aggravated sexual assault. The transcript of the plea hearing includes the following:

MR. SHIVERS [Assistant Prosecutor]: Your Honor, Mr. Tilmon is before the court on indictment 88-179. As your Honor is well aware, Mr. Tilmon was originally found guilty of felony murder, aggravated sexual assault and the Appellate Division reversed his conviction on felony murder and aggravated sexual assault.

At this time, Mr. Tilmon stands ready to plead guilty to aggravated sexual assault, a first degree crime, in return for a recommendation that he receive 20 years [in] New Jersey State prison with an eight year period of parole ineligibility to run concurrent to the 20 year state prison sentence which he is currently serving on the aggravated manslaughter with credit for time served back to the date of his original arrest.

. . . .

MR. BUCKMAN [Defendant's attorney]: Judge, the recitations by Mr. Shivers are accurate to my understanding, and based on my discussions with Mr. Shivers and Mr. Tilmon here this morning, I have filled out the plea form with Mr. Tilmon. I asked him the questions contained on the plea form. I thereafter appended his responses and I witnessed his signature on the plea form and the supplemental plea form as well as his initials on the bottom of the first page of the plea form.

. . . .

THE COURT: Now, on this charge of aggravated sexual assault, November 14, 1987, Cinnaminson, involving [T.S.], are you guilty of that offense?

THE DEFENDANT: Yes, your Honor.

THE COURT: And what sexual activity and what penetration of her took place that was not consensual with her?

THE DEFENDANT: Anal intercourse, your Honor.

THE COURT: Had she consented to some other form of intercourse?

THE DEFENDANT: Yes, your Honor.

THE COURT: And had that occurred?

THE DEFENDANT: Yes, your Honor.

THE COURT: And was this anal intercourse following that consensual other intercourse?

THE DEFENDANT: Yes, your Honor.

THE COURT: And did that take place on November 14th of '87?

THE DEFENDANT: Yes, your Honor.

THE COURT: Where did that happen?

THE DEFENDANT: In Cinnaminson. I don't remember the name of the hotel. There was a motel.

THE COURT: And was this on the same occasion, on the same meeting her life came to an end?

THE DEFENDANT: Yes, your Honor.

THE COURT: And it was -- did this anal intercourse between you and her occur on that same occasion when -- that was the subject of your conviction of aggravated manslaughter; is that the same night?

THE DEFENDANT: Yes, your Honor.

Prior to sentencing, defendant sought to withdraw his guilty plea on the grounds that he had been given incorrect information concerning the maximum sentence for an aggravated sexual assault conviction. On September 4, 1992, the trial court denied defendant's motion and sentenced defendant consistent with the plea agreement.

Defendant appealed his guilty plea, but we affirmed and the Court denied defendant's petition for certification. See State v. Tilmon, No. A-1332-92 (App. Div. November 18, 1993), certif. denied, 136 N.J. 297 (1994). Defendant's first PCR petition was denied by Judge Friedman on July 26, 1996. That order was affirmed on appeal, and defendant's petition for certification was denied. See State v. Tilmon, No. A-2732-96 (App. Div. December 8, 1998), certif. denied, 160 N.J. 90 (1999). Defendant's second PCR petition was denied by Judge Schlosser on February 10, 2004. In a letter dated February 17, 2004, Judge Schlosser explained that all of the issues raised by defendant "have already been decided." Defendant's subsequent appeal to this court was dismissed on February 3, 2005, for lack of prosecution. See State v. Tilmon, No. A-4517-03. Defendant also unsuccessfully petitioned the United States District Court twice for a writ of habeas corpus.

In a letter to defendant dated April 13, 2005, Judge Schlosser explained his reasons for denying defendant's third PCR petition:

Initially, you were convicted of a felony murder, aggravated manslaughter, and aggravated sexual assault. These convictions arose from a single incident and your sentences were made concurrent.

The convictions for felony murder and aggravated sexual assault were reversed on appeal. You indicate in your petition that the conviction for aggravated manslaughter was upheld. On March 16, 1992, you entered into a negotiated plea agreement and pled guilty to aggravated sexual assault. On September 4, 1992 you received a sentence of 20 years with a period of parole ineligibility of 8 years. This was concurrent to the then existing 20 year sentence for aggravated manslaughter.

Your guilty plea and sentence was, you indicate, appealed, and the judgment was affirmed. All your subsequent applications were denied.

Now, you allege that your sentence for the aggravated sexual assault was illegal.

You allege that your guilty plea to this charge was, in fact, a guilty plea to felony murder. I find that there is no basis for this argument and no merit to it. There is no present conviction for felony murder. You were not illegally convicted nor sentenced for a felony murder conviction.

An aggravated sexual assault conviction can and does stand on [its] own and need not be linked to a felony murder conviction.

These are separate crimes, and you were indicted for them in separate counts of the indictment.

Your application for post conviction relief is denied for the reasons set forth hereinabove. No evidentiary hearing is necessary, and your request for same is denied.

Defendant seems to argue that his sentence on the aggravated sexual assault is illegal because that conviction would merge with a felony murder conviction, and the felony murder count was dismissed. In any event, it is clear that defendant was convicted and sentenced for two separate and distinct crimes: (1) aggravated manslaughter and (2) aggravated sexual assault. Defendant's aggravated sexual assault conviction does not merge with his aggravated manslaughter conviction, and he has not been "punished twice for one criminal act."

The record fully supports the trial court's determination that defendant did not receive an illegal sentence. Accordingly, we affirm the order denying defendant's application substantially for the reasons expressed by Judge Schlosser in his letter of April 13, 2005, to defendant.

 
Affirmed.

(continued)

(continued)

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A-4702-04T5

February 16, 2006