STATE OF NEW JERSEY v. BOBBY BROWN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3394-07T43394-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BOBBY BROWN,

Defendant-Appellant.

______________________________________

 

Submitted March 30, 2009 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the State of New Jersey, Law Division, Warren County, Indictment No. 91-05-0273.

Yvonne Smith Segars, Public Defender, attorney for appellant (John M. Gilson, Designated Counsel, on the brief).

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Bobby Brown appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

In January 1993, a jury convicted defendant of two counts of capital murder, N.J.S.A. 2C:11-3a (1) and (2), along with thirteen other charges contained in Indictment No. 91-5-0273 returned by a Warren County grand jury. Following a subsequent penalty phase trial in which the jury found that the aggravating factors outweighed the mitigating factors, the jury unanimously agreed that the death penalty should be imposed against defendant for the death of victim Alice Skov. As to the murder of victim John Bell, the jury could not unanimously agree upon the appropriate punishment. The court imposed a sentence of death for the murder of Alice Skov, and life imprisonment with a thirty-year period of parole ineligibility for the murder of John Bell. The Supreme Court affirmed both the murder convictions and the life sentence for Bell's murder, but reversed the death sentence imposed for the Skov murder. State v. Brown, 138 N.J. 481, 563 (1994). The matter was remanded to the trial court for a penalty phase retrial or, alternatively, the imposition of life imprisonment with a thirty-year period of parole ineligibility in the Skov matter. On March 17, 1995, the court resentenced defendant to life imprisonment with a thirty-year period of parole ineligibility.

Defendant next appealed the sentences to an Excessive Sentencing Panel that rejected defendant's contention that the sentences imposed were excessive. The Supreme Court denied defendant's petition for certification. State v. Brown, 144 N.J. 587 (1996). On April 24, 1997, defendant filed his first PCR petition that was denied by the trial court. On appeal, we affirmed. State v. Brown, No. A-188-99T4 (App. Div. February 26, 2001). Nearly ten years later, on February 21, 2007, defendant filed a second PCR petition, which was originally characterized as a motion to correct an illegal sentence, for which there is no time bar. See R. 3:22-12(a). In a well-reasoned written opinion issued following a hearing, Judge John H. Pursel rejected defendant's claims and denied defendant's petition. Specifically, the judge found:

B. Defendant's Second PCR

Defendant in his present PCR Petition sets forth the following reasons why his sentence is illegal: 1) because his sentence is not specific as to the maximum amount of time he could spend incarcerated; and 2) because he was sentenced above the maximum allowed, and "contrary to the jury verdict."

[Rule] 3:22-12 states that an illegal sentence may be appealed at any time. However, prior adjudication of an issue on direct appeal or other post-conviction proceeding ordinarily bars consideration of that issue on post-conviction relief. R. 3:22-5. In this case, both the Law and Appellate Divisions have already adjudicated the issue of an illegal sentence in this case.

Moreover, in State v. McQuaid, 147 N.J. 464 (1997), the New Jersey Supreme Court held that although prior adjudicated claims will be procedurally barred from reconsideration, claims that differ substantially from those already adjudicated will be decided. In this case, Defendant's assertions of an illegal sentence are substantially the same as his prior assertions. The common thread in Defendant's arguments is that his sentence is illegal. The reasons which Defendant proffers as to why his sentence is illegal do not matter for the purpose of [Rule] 3:22-5. Defendant's two PCR claims are similar because of the grounds on which they are based.

II. Time Barred

As to Defendant's claim of ineffective assistance of counsel, the underlying sentence upon which the claim is based is well outside the five-year period contemplated by [Rule] 3:22-12. According to State v. Dillard, 208 N.J. Super. 722 (App. Div.), cert. denied, 105 N.J. 527 (1986) the five-year period contemplated by [Rule] 3:22-12 commences when the judgment of conviction is entered and is neither stayed nor tolled by appellate or other review proceedings. The file is deemed filed on the date it is marked "received." Appellate review of Defendant's sentences for the murders of John Bell and Alice Skov ended in 1993 and 1995, respectively. Defendant now files his Petition claiming ineffective assistance of counsel some 12 and 14 years after the underlying judgments were entered. Additionally, Defendant has alleged no facts which would indicate excusable delay or neglect.

Thus, the issue of ineffective assistance of counsel is time-barred. To compound the issue, if Defendant contends that counsel was ineffective somehow by failing to challenge the illegal sentence, that issue has already been decided herein, and the balance of the decision is appropriate.

Additionally, the court concluded that defendant's claims that the sentencing judge failed to consider any mitigating factors, illegally imposed two life terms with consecutive thirty-year periods of parole ineligibility, and his trial counsel was ineffective because he failed to raise the illegality of the sentences, were all procedurally barred and without merit.

On appeal, defendant raises the following point for our consideration:

THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED, AND THIS MATTER MUST BE REMANDED, DUE TO THE INEFFECTIVE ASSISTANCE OF PCR COUNSEL'S NOT ADVANCING DEFENDANT'S CLAIMS. (Not Raised Below).

In his pro se supplemental brief, defendant raises the following points for our consideration:

POINT I

THE PETITIONER SUBMIT[S] THAT THE TRIAL COURT ERRED IN DENYING HIS PETITION TO VACATE AN ILLEGAL SENTENCE AND ASK[S] THE REVIEWING COURT TO SPECIFY WHETHER PETITIONER IS INDEED SERVING A LIFE SENTENCE OR A 75[-]YEAR SENTENCE (A LIFE SENTENCE ALSO VIOLATES THE EX POST FACTO CLAUSE OF BOTH NEW JERSEY AND THE U.S. CONSTITUTION). (ALSO RAISED BELOW).

POINT II

THE APPELLANT SUBMIT[S] THAT WHERE THE TRIAL COURT FAILED TO ACKNOWLEDGE THE PAROLE INELIGIBILITY AS INCONSISTENT WHERE A LIFE SENTENCE IMPOSED SHOULD BE REVIEWED BY THE COURT FOR THE PURPOSE OF FACTUAL DETERMINATION AND IN LIGHT THAT IT VIOLATES THE EX POST FACTO CLAUSE OF NEW JERSEY AND THE UNITED STATES CONSTITUTION AND DUE PROCESS OF BOTH STATE AND FEDERAL CONSTITUTIONAL PROVISIONS AND LIKEWISE THE COURTS SHOULD DETERMINE IF IN FACT WHERE A LIFE SENTENCE IS IMPOSED THE PAROLE INELIGIBILITY SHOULD BE OTHER THAN 25 YEARS.

POINT III

THE APPELLANT SUBMIT[S] HIS ILLEGAL SENTENCE SHOULD BE REMANDED TO THE TRIAL COURT TO ESTABLISH THE FACTS OF THE HEREIN ARGUMENT OF HIS ILLEGAL SENTENCE WITH AN EVIDENTIARY HEARING ESPECIALLY CONSIDERING THE TRIAL COURT[']S ASSESSMENT OF THE ISSUES RAISED SHOULD NOT HAVE BEEN BASED ON LIFE AS AN ORDINARY TERM FOR MURDER BUT THE CONTROLLING STATUTE WHICH DICTATES AS PROVIDED UNDER N.J.S.A. 2C:11-3B THAT A SPECIFIC TERM SHOULD APPLY AS ANYTHING CONTRARY IS IN VIOLATION OF THE EX POST FACTO CLAUSE OF NEW JERSEY AND THE UNITED STATES BECAUSE EVEN SINCE SERRONE THE STATUTE GOVERNING THE SENTENCE OF MURDER HAS BEEN SINCE AMENDED.

 
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons stated in Judge Pursel's well-written and well-reasoned opinion of November 29, 2007.

Affirmed.

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A-3394-07T4

April 30, 2009