STATE OF NEW JERSEY v. TROY SWINT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2850-06T42850-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY SWINT,

Defendant-Appellant.

________________________________________

 

Submitted January 7, 2009 - Decided

Before Judges Rodr guez and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3475.

Troy Swint, appellant, filed a brief pro se.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Troy Swint appeals from the January 8, 2007 order denying his motion to correct an illegal sentence. We affirm.

This case's facts and procedural history are set forth in our published opinion, State v. Troy Swint, 328 N.J. Super. 236, 244-48 (App. Div.), certif. denied, 165 N.J. 492 (2000). In short, defendant was convicted in April 1998 of kidnapping, aggravated assault, and possession of a weapon to use unlawfully against another. The judge imposed a life sentence with a twenty-year minimum term for kidnapping, and a consecutive twenty-year term with ten years to be served without parole for aggravated assault. Thus, the aggregate term was life plus twenty years, with a thirty-year minimum term.

On direct appeal, we affirmed the convictions but remanded for resentencing because the imposition of a twenty-five year parole ineligibility period was required due to defendant's status as a second-time Graves Act offender upon whom a life sentence has been imposed. On direct appeal, we commented upon the imposition of consecutive sentences, stating that, although "the offenses were connected by a 'unity of specific purpose,' that is, that the kidnapping was committed for the purpose of committing the assault and therefore the crimes were somewhat interdependent of one another," that circumstance "did not necessarily mean that defendant was entitled to concurrent sentences." Swint, supra, 328 N.J. Super. at 264. We further stated that "considering the nature of each offense, the purpose for which they were committed, and the manner in which they were committed, including the maiming of the victim by cutting off each of his ears, shooting him, and stabbing him, our judicial conscience is not least bit shocked by the imposition of consecutive sentences." Ibid. In addition, we ordered the judge to state the reasons for imposing Victims of Crime Compensation Board (VCCB) assessments higher than the statutory minimum. On remand, defendant was resentenced to a term of life imprisonment with a twenty-five year parole disqualifier for the kidnapping and a consecutive fifteen-year term with a five-year parole disqualifier for the aggravated assault.

Defendant filed a first petition for post-conviction relief (PCR). That petition was denied. In the PCR court defendant, through PCR counsel, raised claims of ineffective assistance of trial and appellate counsel. One of the claims of ineffectiveness alleged that "Pursuant to State v. Rue, 175 N.J. 1 (2002), Petitioner Argues that the Imposition of Consecutive Sentences is Illegal." The argument was as follows:

Petitioner argues that the Court failed to apply the judicially created sentencing guidelines for multiple offenses as outlined in State v. Yarbough, 100 N.J. 627 (1995), cert. denied, 475 U.S. 104 (1986), and therefore violated Blakely v. Washington, 542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) by applying aggravating factors (see Procedural History), other than a prior record, not found applicable by the jury or admitted to by the defendant in order to sentence Petitioner to consecutive sentences totaling 30 years, a lifetime to a 26 year old.

Petitioner argues that the imposition of consecutive sentences is illegal. Petitioner is therefore entitled to post-conviction relief.

Defendant also submitted to the PCR court, pro se, a supplemental brief that raised the same issue. This time the argument was raised as an error by the court rather than as ineffective assistance of counsel.

Defendant appealed the denial of his PCR petition, raising allegations of ineffective assistance of trial, appellate and PCR counsel. He did not appeal the rejection of his challenge to the consecutive aspects of the sentence. We rejected all of defendant's arguments and affirmed. A-5545-05 (App. Div. July 30, 2008)), certif. denied, 197 N.J. 14 (2008).

In the present appeal challenging his sentences as illegal, defendant contends:

PETITIONER SUBMITS THAT WHERE THE TRIAL COURT FAILED TO ADEQUATELY ADDRESS THE ISSUE OF HIS RE-SENTENCING ACCORDING TO THE RECENT OPINION THAT THE CONSECUTIVE SENTENCES WERE INTERDEPENDENT OF ONE ANOTHER RENDERED HIS SENTENCE ILLEGAL AND ESPECIALLY IN LIGHT OF THE MOST MAJOR EVIDENCE WHERE PETITIONER WAS FOUND NOT GUILTY AFTER A DEAD LOCK ON ALL NINE COUNTS IN WHICH THE PREJUDICIAL ALLEN CHARGE WAS READ FORCING THE INCONSISTENT VERDICTS RENDERED BY THE JURY (Also Raised In The Below Subpoints).

A. Petitioner Submits That Where The Trial Court Failed to Re-Sentence Him to A Term Consistent With That of The Appellate Courts Prior Ruling In State v. Swint, 328 N.J. Super. 236 (App. Div. 2000) His Sentence Is Illegal In That The Sentences Were Interdependent Of One Another and Reversed Based On This Decision.

B. Petitioner Submits That His Mandatory Extended Term Is Illegal and Must Be Dismissed With Prejudice In Violation of His 5th and 14th Amendment To Due Process Where The Court Is Required To Give Notice To The Petitioner and Hearing Afforded Prior to Sentencing to Determine Appropriate Punishment For Extended Term Sentencing.

This issue is procedurally barred because it was already raised and adjudicated in the previous PCR petition. R. 3:22-5. Nonetheless, if we were to address it on the merits, we would reject this argument.

Defendant also contends:

PETITIONER SUBMITS THAT WHERE THE TRIAL COURT MOVED TO SENTENCE THE PETITIONER TO A MANDATORY GRAVES ACT THE SENTENCE IS ALSO ILLEGAL BY FAILURE OF THE STATE TO SUBMIT TO THE GRAND JURY TO DECIDE IF PERHAPS THE PETITIONER WAS ELIGIBLE FOR AN EXTENDED TERM AND CAN NOT BE DISMISSED AS HARMLESS ERROR WHERE THE PETITIONER WAS CHARGED WITH A FELONY (Raised Below).

PETITIONER SUBMITS THAT RESPONDENT'S FAILURE ACCORDED TO THE LAW TO STATE ON RECORD ITS REASONS FOR REFUSING TO WAIVER THE EXTENDED TERM IN THE INSTANT CASE WARRANTS DISMISSAL WITH PREJUDICE.

These arguments are clearly without merit and do not warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

N.J.S.A. 2C:43-6c to -6d.

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A-2850-06T4

July 9, 2009