STATE OF NEW JERSEY v. ALONZO JENKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4862-04T14862-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALONZO JENKINS,

Defendant-Appellant.

_______________________________________

 

Submitted March 27, 2006 - Decided April 18, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-04-1670.

Alonzo Jenkins, appellant pro se.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Alonzo Jenkins appeals from an order entered by Judge Donald S. Goldman on May 2, 2005 denying defendant's third petition for post conviction relief (PCR). We affirm.

Defendant was charged in an Essex County indictment with second degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five). Following a trial before a jury, defendant was convicted on counts one, two, five and third-degree aggravated assault, a lesser-included offense of count three. Defendant was acquitted on count four. The judge merged counts one, three and five with count two and sentenced defendant to a term of 45 years with a 15-year period of parole ineligibility.

Defendant appealed and raised the following contentions:

POINT I: THE PROSECUTOR REPEATEDLY ELICITED INADMISSIBLE HEARSAY THROUGH THE TESTIMONY OF THE INVESTIGATING OFFICER.

POINT II: DEFENDANT'S CONVICTIONS WERE CONTRARY TO THE WEIGHT OF THE EVIDENCE.

POINT III: DEFENDANT'S SENTENCED IS MANIFESTLY EXCESSIVE.

We affirmed the convictions and sentence. State v. Jenkins, No. A-4150-97T4 (App. Div. November 3, 1999). The Supreme Court denied defendant's petition for certification. State v. Jenkins, 165 N.J. 133 (2000).

On or about July 21, 2000, defendant filed his first PCR petition. Defendant alleged that he had received ineffective assistance of counsel at trial because his attorney failed to conduct a pre-trial investigation, failed to examine certain evidence prior to trial, did not prepare for trial, and failed to consult with defendant; prosecutorial misconduct had occurred before the grand jury; the prosecutor had suppressed statements by certain eyewitnesses during their testimony in an earlier trial of a co-defendant; the trial judge failed to properly instruct the jury concerning certain hearsay testimony; and the judge erred in failing to instruct the jury on the issue of identification. In addition, defendant argued that he had been denied the effective assistance of appellate counsel. Following a hearing, the judge entered an order on October 26, 2001 denying the petition.

Defendant appealed and raised the following contentions:

POINT I: THE TRIAL COURT ERRED IN CONCLUDING THAT DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

POINT II: PROSECUTORIAL MISCONDUCT ENTITLED DEFENDANT TO VACATION OF HIS CONVICTION AND SENTENCE.

POINT III: DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL.

Defendant filed a supplemental pro se brief in which he raised the following additional arguments:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WHERE, AS HERE, IT IS CLEAR THAT IN VIOLATION OF DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND A FAIR TRIAL, THE STATE WITHHELD FROM DEFENDANT MATERIAL EVIDENCE AND STATEMENTS THAT DIRECTLY EXCULPATED DEFENDANT AND IMPLICATED OTHERS IN AN OBSTRUCTION OF JUSTICE.

POINT II: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WHERE, AS HERE, DEFENDANT'S TRIAL ATTORNEY FAILED TO INVESTIGATE OBVIOUS SIGNIFICANT AVENUES OF DEFENSE, INCLUDING INTERVIEWING AND CALLING OF WITNESSES AND OTHERS WHO WOULD HAVE DIRECTLY EXCULPATED DEFENDANT, UTTERLY DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF LAW, AND A FAIR TRIAL.

POINT III: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WHERE, AS HERE, THE EVIDENCE PRESENTED TO THE TRIAL COURT ESTABLISHES THAT DEFENDANT WAS UNFAIRLY CONVICTED IN VIOLATION OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS OF LAW AND A FAIR HEARING.

POINT IV: THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS FIRST POST CONVICTION RELIEF PETITION AND DUE PROCESS OF LAW, EQUAL PROTECTION UNDER THE LAW AND A FAIR HEARING, WHEN COUNSEL REFUSED TO CONTACT OR CONSULT WITH THE DEFENDANT, COUNSEL DID NOT INVESTIGATE THE DEFENDANT'S CLAIM BY NOT INTERVIEWING AND CALLING OF WITNESSES, DID NOT AMEND THE DEFENDANT'S PETITION, COUNSEL DID NOT SUBMIT A REPLY BRIEF TO THE PROSECUTION BRIEF, COUNSEL HAD SOLELY RELIED ON THE DEFENDANT'S POORLY ARTICULATED AND INADEQUATELY 65-PAGE PRO SE CONTENTIONS.

We affirmed. State v. Jenkins, No. A-1284-01T4 (App. Div. January 8, 2003). The Supreme Court denied defendant's petition for certification. State v. Jenkins, 176 N.J. 280 (2003).

Defendant filed a second petition for PCR on or about April 25, 2003, alleging that the trial judge erred in imposing an extended term of imprisonment. On May 20, 2003, the trial judge entered an order denying the petition.

Defendant appealed and argued that the extended term constituted an illegal sentence because it was based on a "false" judgment of conviction; the judge had improperly used defendant's juvenile record; and the sentence was based on "false" information in the pre-sentence report. Defendant argued that his enhanced sentencing contravened his right a trial by jury under the Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Defendant further argued that the prosecutor's conduct in the sentencing proceeding was egregious. In an opinion filed February 9, 2004, we concluded that these contentions were entirely without merit and affirmed the order denying PCR relief. State v. Jenkins, No. A-5851-02T1 (App. Div. February 9, 2004).

Defendant filed a third PCR petition on September 24, 2004. According to the judge's order, defendant raised the following contentions:

POINT I: THE DEFENDANT [WAS] DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW, TO HAVE EVERY ELEMENT OF THE OFFENSES CHARGED IN THE INDICTMENT BASED UPON SUFFICIENT CREDIBLE INFORMATION WERE NOT FOUND BY THE GRAND JURY.

POINT II: THE TRIAL COURT VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGTHS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW AND HIS RIGHT TO A JURY TRIAL, WHEN IT SENTENCED DEFENDANT TO A 45 YEAR PRISON TERM, INCLUDING A DISCRETIONARY PERIOD OF PAROLE INELIGIBILITY, BASED UPON FACTS NEITHER ADMITTED BY DEFENDANT NOR FOUND BY THE JURY.

The judge entered an order on May 2, 2005 denying the petition. Included in the order was a statement of the judge's reasons for denying PCR relief. The judge noted that the first issue raised deals with the sufficiency of the grand jury proceedings "a claim that could have been made earlier" and which was in any event "mooted by the trial." The judge also noted that the claim that the extended term sentence was illegal had been raised by defendant in his appeal from the denial of the second PCR petition. The judge found no merit in the contention, noting that the enhanced sentence had been imposed based solely on defendant's "many prior convictions" and was below the presumptive extended term of 50 years established by N.J.S.A. 2C:44-1f(1).

Defendant appeals and raises the following contentions:

POINT I: THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL ON THE DEFENDANT'S FIRST PETITION FOR POST-CONVICTION RELIEF, UN-EXHAUSTED CLAIM.

POINT II: THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW, TO HAVE EVERY ELEMENT OF THE OFFENSE, INCLUDING THE LEGAL DEFINITION OF THE CRIMINAL STATUTE OR CODE PRESENTED TO THE GRAND JURY, BASED UPON SUFFICIENT CREDITABLE INFORMATION AND EVIDENCE FOR THE FINDING OF PROBABLE CAUSE WAS NOT FOUND BY THE GRAND JURY.

POINT III: THE TRIAL COURT VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO RECEIVE DUE PROCESS AND EQUAL PROTECTION OF THE LAW AND THE RIGHT TO HAVE A JURY TRIAL WHEN THE TRIAL COURT SENTENCED DEFENDANT TO A DISCRETIONARY EXTENDED TERM OF IMPRISONMENT TO 45 YEAR[S] WITH A 15 YEAR PAROLE INELIGIBILITY, [BASED] UPON FACTS NEITHER ADMITTED BY THE DEFENDANT NOR FOUND BY THE JURY BEYOND A REASONABLE DOUBT.

We are convinced that these contentions are entirely without merit and we affirm substantially for the reasons stated by Judge Goldman in his order of May 2, 2005. We add the following.

Defendant contends that he was denied the effective assistance of counsel in his first PCR petition. Defendant asserts that under State v. Rue, 175 N.J. 1 (2002), PCR counsel had a obligation "to advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them." Id. at 19. Defendant notes that in his letter of May 8, 2001, PCR counsel wrote to the court regarding the first petition and in that letter detailed all of the contentions that had been asserted on defendant's behalf. Counsel added that he had read the transcripts and all previously filed documents and, on the basis of his review, found no issues that would otherwise satisfy the requirements of R. 3:22-2(a),(b),(c) or (d) or overcome the procedural bars of R. 3:22-3, R. 3:22-4, or R. 3:22-5. Defendant asserts that PCR counsel did not properly investigate his claims and did not discuss the case with him.

The record before us does not disclose whether this issue was raised in the third PCR petition. The record shows, however, that defendant raised these contentions in the appeal from the denial of the first petition for PCR. As we pointed out previously, defendant argued in that appeal that PCR counsel refused to consult with him, failed to properly investigate the matter, did not interview and call witnesses, did not amend the petition, failed to file a reply brief and relied solely on defendant's submission. We rejected these contentions and our "prior adjudication upon the merits" is "conclusive." R. 3:22-5. See State v. Harris, 181 N.J. 391, 494 (2004).

Defendant additionally asserts that he was denied the effective assistance of appellate counsel in the appeal from the denial of the first PCR petition. Defendant argues that counsel failed to order a copy of pertinent transcripts. Therefore, defendant alleges that in the consideration of his appeal we did not have the benefit or the opportunity to review the transcribed record in that appeal. We find no merit in this contention. Defendant clearly has not shown that counsel's handling of the appeal rose to the level of ineffective assistance of counsel. We are not convinced that the result of the appeal would have been different if PCR counsel had obtained the transcripts referred to by defendant.

Defendant also asserts that his extended term sentence was imposed in contravention of his right to trial by jury under the principles enunciated in Apprendi, supra, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435; and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We rejected defendant's Sixth Amendment challenge to his sentence in the appeal from the denial of defendant's second PCR petition. We remain convinced that defendant's sentence was constitutionally imposed.

Here, defendant was sentenced to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3. We have held that the decision to impose an extended term in these circumstances "falls squarely within the recidivism exception to Blakely and does not require any further jury finding for enhancement purposes." State v. McMillan, 373 N.J. Super. 27, 28 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005). Furthermore, the extended term for a first-degree offense is between 20 years and life imprisonment. N.J.S.A. 2C:43-7a(2). The presumptive extended term is 50 years. N.J.S.A. 2C:44-1f(1). Although the judge found that the aggravating factors substantially outweighed the mitigating factors, he sentenced defendant to 45 years in prison, a term that is shorter than the presumptive extended term for a first degree offense. The principles enunciated in Apprendi and Blakely have no application to such a sentence.

Affirmed.

 

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A-4862-04T1

April 18, 2006