STATE OF NEW JERSEY v. STEVEN REEVES

(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NOT FOR PUBLICATION WITHOUT THE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-4156-07T44156-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN REEVES,

Defendant-Appellant.

_________________________________

 

Submitted: May 6, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-09-3308.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Steven Reeves appeals from the denial of his Decem ber 6, 2006, petition for post-conviction relief (PCR). We affirm.

Defendant was convicted on March 29, 1993, of third-degree conspiracy, N.J.S.A. 2C:5-2; third-degree receiving stolen property, N.J.S.A. 2C:20-7; third-degree theft by unlawful tak ing, N.J.S.A. 2C:20-3a (two counts); first-degree attempted mur der, N.J.S.A. 2C:5-1 (three counts); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (three counts); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2); fourth-degree unlawful pos session of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.

Defendant was sentenced to three eighteen-year terms of imprisonment for the three first-degree attempted-murder charges, two consecutive and one concurrent to the first. He was sentenced to three five-year terms concurrent to the first eighteen-year term for receiving stolen property and the two counts of theft by unlawful taking. He was sentenced to two eighteen-month terms concurrent to the first eighteen-year term for resisting arrest and unlawful possession of a weapon. The remaining convictions were merged for sentencing purposes.

Defendant appealed his conviction and sentence, arguing that prosecutorial misconduct denied him due process of law and that the sentence was manifestly excessive. State v. Reeves, No. A-2471-95T4 (App. Div. June 10, 1997) (slip op. at 2). We found "no support in the record for defendant's conten tion that the prosecutor expressed his personal belief or opinion as to the truth or falsity of the evidence or the guilt of defendant," nor did we find "any support for the contention that the prosecutor asked the jury to step into the victim's shoes." Id. (slip op. at 5). We also found that the sentencing "was in accordance with the sentencing guidelines and based on a proper weighing of the aggravating and mitigating factors sup ported by the record" and did "not shock our judicial conscience." Ibid.

In his petition for PCR, defendant asserted that he was denied the effective assistance of appellate counsel. Specifi cally, he contended that his appellate counsel did not appeal the imposition of the consecutive eighteen-year sentence for one of the three attempted murders. He contends that counsel ought to have argued under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), that all three eighteen-year sentences should have been concurrent to each other. Defendant also argued that the five-year bar of Rule 3:22-12(a) did not apply because it was his contention that the sentence was illegal under Yarbough.

The PCR judge found that the Yarbough factors were considered by the sentencing judge, who stated his reason for imposing a consecutive sentence on the record and that defendant's trial counsel advocated for concurrent sentences. He found that we had considered and rejected the issue of excessive sentencing as lacking in merit and concluded that he did not have to decide the issue respect ing the procedural bar because there was no merit to the application.

Defendant raises the following issues on appeal:

POINT I - THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO CONSIDER DEFENDANT'S CLAIMS DUE TO A PROCEDURAL BAR.

POINT II - APPELLATE COUNSEL'S FAILURE TO RAISE THE ISSUE OF CONSECUTIVE SENTENCES CONSTITUTED INEFFECTIVENESS OF COUNSEL. (Not Raised Below)

POINT III - THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVI DENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF APPELLATE COUNSEL.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S. Ct. 2973, 149 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord defer ence to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 552 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record" by the PCR judge. Ibid. (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

In his first point on appeal, defendant contends that the PCR judge's determination was "the functional equivalent of a R[ule] 3:22-5 procedural bar," which he asserts was error because we had not considered the propriety of his consecutive sentence. Although we do not agree with defendant's characteri zation of the judge's decision, we do agree that appellate coun sel's failure to raise a Yarbough issue is not subject to the procedural bar of Rule 3:22-5, which provides that "a prior adjudication upon the merits of any ground for relief is conclusive."

However, defendant's petition is untimely under Rule 3:22-12(a), which provides:

A petition to correct an illegal sen tence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

Defendant's petition did not allege any facts that might even arguably show that his eight-year delay in seeking PCR was excusable and he may not seek relief from the five-year bar based upon excusable neglect. State v. Cummings, 321 N.J. Super. 154, 166-67 (App. Div.) (five-year delay not excused by pendent appellate proceedings), certif. denied, 162 N.J. 199 (1999); State v. Miller, 277 N.J. Super. 122, 129 (App. Div. 1994), certif. denied, 142 N.J. 449 (1995) (eighteen-month delay not excusable). Thus, we may consider the issues defendant raises on appeal only if his petition sought to correct an illegal sentence.

An illegal sentence is one that is contrary to the Code of Criminal Justice, such as one that exceeds the statutory maxi mum, State v. Scher, 278 N.J. Super. 249, 274 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995), or one that is below the minimum, State v. Haliski, 273 N.J. Super. 157, 160 (App. Div. 1994), aff'd, 140 N.J. 1 (1995). A sentence erroneously imposing a mandatory parole ineligibility term is illegal, State v. Smith, 372 N.J. Super. 539, 542 (App. Div. 2004), certif. denied, 182 N.J. 428 (2005), as is one improperly imposed on the aggregate sentence, State v. Orlando, 269 N.J. Super. 116, 141-42 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994). A concurrent sentence is illegal if the Code mandates a consecutive sentence in the circumstances. State v. Moore, 377 N.J. Super. 445, 449 (App. Div.), certif. denied, 185 N.J. 267 (2005). Other exam ples of illegal sentences include a split sentence for a second-degree crime where the judge determines that incarceration is necessary, State v. Whidby, 204 N.J. Super. 312, 314 (App. Div. 1985), and a sentence for a fourth-degree crime where the defen dant was convicted of a third-degree crime, State v. Chavies, 345 N.J. Super. 254, 277 (App. Div. 2001).

Rule 3:22-2(c) clearly states that a PCR petition is cognizable if it is based on "[i]mposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law." Indeed, we have explained that excessive, rather than illegal, sentences may only be remedied on direct appeal. State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971).

"Generally, the Code does not specify when multiple sen tences should run concurrently and when they should run consecu tively. The Code simply states that 'multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence.'" State v. Carey, 168 N.J. 413, 422 (2001) (quoting N.J.S.A. 2C:44-5a). In order to avoid "unbridled dis cretion in sentencing judges" which might lead to a lack of sentencing uniformity, the Court formulated the factors to be considered in exercising discretion to sentence concurrently or consecutively. Ibid. Those factors are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

 
(2) the reasons for imposing either a con secutive or concurrent sentence should be separately stated in the sentencing decision;

 
(3) some reasons to be considered by the sentencing court should include facts relat ing to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

 
(b) the crimes involved separate acts of violence or threats of violence;

 
(c) the crimes were committed at different times or separate places, rather than being commit ted so closely in time and place as to indicate a single period of aberrant behavior;

 
(d) any of the crimes involved multiple victims;

 
(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

 
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

 
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.[]

[Yarbough, supra, 100 N.J. at 643-44 (footnotes omitted).]

These factors are guidelines only and "a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Carey, supra, 168 N.J. at 427 (citations omitted) (observing that "[c]rimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences").

It is clear from Yarbough and Carey that the imposition of most consecutive sentences, i.e., those not mandated by the Code, are reviewable for a mistaken exercise of discretion or for a failure to consider the factors governing the imposition of consecutive sentences. State v. Spivey, 179 N.J. 229, 245 (2004) (trial judge's decision to impose consecutive sentences reviewed for abuse of discretion and not disturbed "unless the sentence is so wide of the mark as to require [appellate] intervention"); State v. Molina, 168 N.J. 436, 442 (2001) (reviewing consecutive sentencing decision for abuse of discretion); Carey, supra, 168 N.J. at 430-31 (same). They are not illegal sentences subject to review at any time under Rule 3:22-2(c) and -12(a). As a result, defendant's claim of ineffective assistance of appellate counsel was subject to the five-year bar of Rule 3:22-12(a) and was untimely.

 
Affirmed.

This last factor was eliminated by amendment to N.J.S.A. 2C:44-5a. Carey, supra, 168 N.J. at 423 n.1.

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A-4156-07T4

May 27, 2009