STATE OF NEW JERSEY v. TERRY COLEMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3501-06T43501-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRY COLEMAN,

Defendant-Appellant.

______________________________________________________

 

Submitted May 25, 2010 - Decided

Before Judges Skillman and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment

No. 99-03-0575.

Yvonne Smith Segars, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the briefs).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On December 22, 1998, defendant and three confederates committed an armed robbery in Red Bank. Defendant grabbed the victim from behind on the street and put a knife to his chin. Defendant and his confederates then robbed the victim of his wallet and CD player.

Defendant was apprehended shortly after the crime. Defendant gave an inculpatory statement to the police in which he admitted committing the robbery but denied having used a knife. Defendant did not testify at his trial. The jury found defendant guilty of armed robbery. On December 10, 1999, the trial court sentenced defendant to an eighteen-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by NERA.

On his direct appeal, we affirmed defendant's conviction and sentence. State v. Coleman, A-3114-99T4 (Dec. 13, 2001).

One of the arguments defendant presented in the direct appeal was that "N.J.S.A. 2C:43-7.2 [the No Early Release Act] is unconstitutional for all the reasons currently urged before the State Supreme Court in State v. Martel Johnson, No. 48,749 (not raised below)." Under another point heading, defendant argued that he was entitled to a hearing before a sentence under NERA was imposed because the jury verdict did not support such a sentence:

Defense counsel objected to the fact that none of the possible weapons in the case

-- i.e., "the little tiny knife in the shape of a duck," the "shiny object" nor the can of mace -- qualified as per se deadly weapons under NERA and that a hearing was required. The judge disagreed, holding that the jury verdict by its very language found that all three were indeed deadly weapons. In doing so, the judge clearly misapplied NERA, ignoring a critical aspect of that statute -- that the definition of "deadly weapon" is not the same in the robbery statute as it is for NERA.

. . . .

[The trial judge] ignored this distinction. In his jury charge he plainly (and properly) allowed for the broader 2C:11-1c definition to be used by the jury to determine if an armed robbery with a deadly weapon was committed, but in doing so he necessitated the need for a NERA hearing when the possible "deadly weapons" were "a little tiny knife in the shape of a duck," a "shiny object" and a can of mace, none of which are per se deadly weapons, but all of which may have been found by the jury to have been used in a manner which caused the victims to believe they were deadly weapons

-- a finding which would satisfy N.J.S.A. 2C:11-1c, but not NERA. Clearly, the matter should be remanded for a NERA hearing to determine if a deadly weapon, as defined in NERA, not in N.J.S.A. 2C:11-1c, was used.

[Citations omitted.]

In rejecting these arguments, we stated:

State v. Johnson, 166 N.J. 523 (2001), upheld an Eighth Amendment cruel and unusual punishment challenge to NERA.

. . . There was no need for a NERA hearing, in view of the verdict sheet which clearly indicated that the jury found beyond a reasonable doubt the NERA-required element that the knife was a dangerous weapon.

[Slip op. at 8.]

We also observed in the course of our opinion that "the verdict sheet anticipated the Apprendi ruling by having the jury make a specific finding of guilt beyond a reasonable doubt that a deadly weapon was used in the commission of the robbery. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)." Id. at 6.

Although we have not been provided with a copy of defendant's petition for certification filed in the Supreme Court, it presumably included the same arguments relating to his sentence as he had presented in his brief filed in this court. The Court denied defendant's petition. 171 N.J. 339 (2002).

On July 31, 2002, defendant filed a petition for post-conviction relief. By written opinion and order entered August 5, 2004, the trial court denied the petition. Although we have not been provided with a copy of defendant's petition, the trial court's fourteen-page written opinion does not mention any argument relating to defendant's sentence. Therefore, we assume no such argument was made at that time. Defendant apparently did not appeal from the denial of his petition for post-conviction relief.

On July 10, 2006, more than six-and-a-half years after entry of his judgment of conviction, defendant, appearing pro se, filed what he characterized as a "motion to correct an illegal sentence." Oral argument on this application, at which defendant was represented by counsel, was held on October 27, 2006, following which the trial court issued an oral opinion denying relief. The court concluded that although defendant had characterized his application to the court as a motion to correct an illegal sentence, it was actually a second petition for post-conviction relief, which was barred by Rule 3:22-5:

Rule 3:22-5 states: A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any

post[-]conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings. In order to determine whether Rule 3:22-5 is applicable and bars relief, the court must determine whether the grounds of the instant claim and the grounds for defendant's prior appeals are identical or substantially equivalent. Even if the claims are only substantially the same, the petition is procedurally barred by Rule 3:22-5.

In the instant matter, defendant raises the exact claims he brought on direct appeal to the Appellate Division after his conviction. These include: (1) defendant played no role in a violent crime[;] (2) it cannot be established that the defendant possessed a deadly weapon; and (3) the evidence demonstrated that defendant did not cause serious bodily injury with a deadly weapon. With respect to those claims, the Appellate Division stated: There was no need for a NERA hearing in view of the verdict sheet which clearly indicated that the jury found beyond a reasonable doubt the NERA hearing required element that the knife was a dangerous weapon. . . . As such, defendant raised these claims unsuccessfully before the Appellate Division and now brings those very claims back to this court. Unfortunately, the New Jersey Court Rules do not afford successive, identical appeals to defendants on matters that were already carefully and exhaustively decided on appeal. Accordingly, this court must find that Rule 3:22-5 prohibits defendant's claims from being raised a second time.

We heard defendant's appeal from the order memorializing this ruling on an excess sentence calendar heard on March 3, 2009. See R. 2:9-11. Defense counsel acknowledged that defendant's current argument relating to his sentence was similar to the argument presented in his direct appeal and that

"the polic[y] of this court is basically not to reconsider arguments which [its] denied before[,]" but argued that "this case presents an exception to that rule because . . . the [A]ppellate [D]ivision has changed the law somewhat since its prior opinion in 2001." Following the argument, we entered a form order affirming defendant's sentence without referring to the trial court's opinion or defense counsel's argument.

Defendant filed a petition for certification. On September 28, 2009, the Court entered an order granting certification and summarily remanding the case to us "for briefing and consideration on a plenary calendar to consider the application of the No Early Release Act's sentence enhancement under State v. Michael J. Natale, 348 N.J. Super. 625 (App. Div. 2003)."

Initially, we note that even though defendant characterized his application to the trial court as a motion to correct an illegal sentence, it was really a second petition for post-conviction relief. See R. 3:22-3 ("[A] petition pursuant to this rule is the exclusive means of challenging a judgment rendered upon conviction of a crime.").

The threshold question presented by this appeal is whether a trial court's failure to properly instruct the jury regarding the factual predicate for imposition of a sentence under the former version of NERA in accordance with the principles set forth in State v. Natale, 348 N.J. Super. 625 (App. Div. 2002), aff'd o.b., 178 N.J. 51 (2003), makes a NERA sentence an illegal sentence. If it does, then defendant's application to the trial court would not be subject to the five-year limitation on the filing of petitions for post-conviction relief imposed by Rule 3:22-12(a). In addition, defendant's application presumably would not be subject to the procedural bars of Rules 3:22-4 and -5, although those rules do not expressly so state.

Our prior disposition of this appeal did not address whether defendant's claim, that the jury instruction under which he was determined to be subject to a NERA sentence did not conform to Natale presented an issue of the alleged illegality of the sentence, because we affirmed by a form order used in appeals heard under the excess sentence calendar. Similarly, the Supreme Court order summarily remanding this appeal to us without opinion did not address this question.

A sentence will be found to be illegal only if it "exceeds the statutory maximum penalty authorized for such an offense or because it was not imposed in accordance with law[.]" State v. Murray, 162 N.J. 240, 247 (2000). Even if the trial court's instruction regarding the factual predicate for a sentence under the former version of NERA was incorrect, that did not make defendant's sentence illegal under these criteria.

Defendant's sentence of eighteen years was within the statutorily prescribed range of ten to twenty years for the first-degree offense of first-degree robbery. See N.J.S.A. 2C:43-6(a)(1). Indeed, because defendant was extended term eligible based on his criminal record, see N.J.S.A. 2C:44-3(a), he could have been sentenced to a term considerably in excess of twenty years. See N.J.S.A. 2C:43-7(2). Furthermore, defendant was also subject to an 85% period of parole ineligibility and a five-year period of post-release parole supervision under the former version of NERA if he was found to have "use[d] or threaten[ed] use of a deadly weapon" in the armed robbery. N.J.S.A. 2C:43-7.2(d) (repealed). Moreover, it is undisputed that the victim's testimony that defendant put a knife to his chin and defendant's possession of a knife when he was apprehended provided a sufficient evidential basis for finding this factual predicate for a NERA sentence. Compare State v. Hernandez, 338 N.J. Super. 317, 323-24 (App. Div. 2001). Therefore, defendant's sentence, including the NERA component, was "authorized by statute." Murray, supra, 162 N.J. at 246.

The further question is whether it was "imposed in accordance with law." Id. at 247. "This category includes sentences that, although not in excess of the statutory maximum penalty, may not be a disposition authorized by the Code." Ibid. "In addition, a sentence may not be in accordance with law because it fails to satisfy required presentencing conditions. For example, a defendant may not be sentenced to an indeterminate term in a youth correctional facility after having served a state or federal prison term without violating N.J.S.A. 30:4-147." Ibid. Even if the factual predicate for defendant's NERA sentence was not properly established, this part of his sentence was nevertheless "authorized by the Code" and not otherwise in violation of the law. Therefore, we conclude that defendant's claim under Natale does not constitute a claim of illegality of his sentence and is subject to the procedural bars to a petition for post-conviction relief.

One of those procedural bars is provided by Rule 3:22-5, which states:

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.

This procedural bar applies if an issue raised in a petition for post-conviction relief "is identical or substantially equivalent to that adjudicated previously on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (quoting State v. Marshall, 148 N.J. 89, 150 (1997)).

In defendant's direct appeal, he argued that the jury verdict finding defendant guilty of armed robbery did not support the imposition of a sentence under NERA because the definition of "deadly weapon" under N.J.S.A. 2C:11-1(c), which the court had used in instructing the jury as to the elements of armed robbery, was more expansive than the definition of "deadly weapon" in N.J.S.A. 2C:43-7.2(d) (repealed), which governed the applicability of a NERA sentence under the former NERA statute. In addition, although Natale was not decided until after defendant's direct appeal, State v. Johnson, 166 N.J. 523 (2001), upon which Natale was based, was decided before our decision in defendant's direct appeal. Indeed, our opinion cited Johnson, albeit for a different principle than the one involved in Natale. Coleman, supra, A-3114-99T4 (slip op. at 8).

Most significantly, our opinion directly addressed and rejected one of the two arguments now advanced by defendant on the basis of Natale: "There was no need for a NERA hearing, in view of the verdict sheet which clearly indicated that the jury found beyond a reasonable doubt the NERA-required element that the knife was a dangerous weapon." Ibid. Thus, there was a "prior adjudication" of that argument, which under Rule 3:22-5 is "conclusive" if a defendant attempts to resurrect the argument on a petition for post-conviction relief. Although it appears in light of Natale and other subsequent decisions that our adjudication of that argument was erroneous, the procedural bar of Rule 3:22-5 applies to both correct and erroneous prior adjudications.

Defendant's other argument -- that the jury's affirmative answer to the question, "Was the robbery committed by Terry Coleman (as the actor) while he was armed with or using or threatening the immediate use of a deadly weapon; namely a knife?" did not establish the "violent crime" predicate for a NERA sentence under the former statute that defendant "use[d] or threaten[ed] the immediate use of a deadly weapon," N.J.S.A. 2C:43-7.2(d) (repealed), because the jury could have answered this question affirmatively based on a finding that defendant was "armed with" the knife without finding that it was used or threatened to be used in the robbery -- was not squarely presented in defendant's direct appeal and therefore would not be barred by Rule 3:22-5.

However, this argument is procedurally barred by Rule 3:22-4, which provides:

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

Even if we concluded that this argument could not have been raised on defendant's direct appeal because Natale had not yet been decided, it clearly could have been raised in his first petition for post-conviction relief. Natale was decided on March 11, 2002, 348 N.J. Super. at 625, which was more than three months before defendant filed his first petition and more than two years before that petition was heard and denied. Defendant has not presented any reason why the arguments he now advances based on Natale could not have been raised in that first petition. See R. 3:22-4(a). Moreover, there is no basis in this record for concluding that application of the procedural bar established by Rule 3:22-4 to preclude defendant from now seeking relief under Natale "would result in fundamental injustice[,]" R. 3:22-4(b), or "be contrary to the Constitution of the United States or the State of New Jersey," R. 3:22-4(c).

Defendant's petition is also barred by Rule 3:22-12(a), which provides that, except for a claim of illegality of a sentence, "[n]o . . . 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."

In State v. Mitchell, 126 N.J. 565, 575-76 (1992), the Supreme Court explained the "good reasons" for this Rule:

As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. . . . Moreover, the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation.

[Citations omitted.]

See also State v. Afanador, 151 N.J. 41, 52-53 (1997).

A court will entertain a petition for post-conviction relief beyond the five-year period allowed by Rule 3:22-12(a) only if the defendant can demonstrate "excusable neglect" in accordance with the rule or "exceptional circumstances" that require relaxation of the five-year time bar in order to avoid an "injustice." Mitchell, supra, 126 N.J. at 578-80.

Defendant's pro se application to the trial court was filed more than six-and-a-half years after the entry of the judgment of conviction. It was therefore untimely under Rule 3:22-12(a). Defendant did not present any excuse for the delay in filing his second petition and his moving papers did not suggest any "exceptional circumstances" that could justify a relaxation of the five-year time limit.

Defendant does not dispute the sufficiency of the evidence to support the NERA component of his sentence. Defendant's only argument is that the jury was not properly instructed regarding the factual predicate of a NERA sentence and therefore its verdict did not provide a proper foundation for the trial court's imposition of that part of defendant's sentence. The relief for this deficiency in the trial court proceeding resulting in imposition of the NERA component of defendant's sentence would be, as the court ordered in Natale, a "remand for a jury trial on the NERA predicate." 348 N.J. Super. at 635. However, the State would be able to prove that NERA predicate only if the victim of the armed robbery or his companion was still available now, more than eleven-and-a-half years after the crime, to testify that a knife was used. The purpose of the five-year time limit on the filing of petitions for post-conviction relief established by Rule 3:22-12(a) is to avoid the prejudice to the State that would result from forcing it to retry a case or part of a case this many years after commission of the crime.

Therefore, we conclude that defendant's petition is not only barred under Rules 3:22-4 and -5 but also Rule 3:22-12(a).

Finally, the State correctly notes that the judgment of conviction does not include the five-year period of parole supervision mandated by NERA. See N.J.S.A. 2C:43-7.2(c). Therefore, the judgment of conviction must be amended to include this requirement. See State v. Colon, 374 N.J. Super. 199, 203 (App. Div. 2005).

Accordingly, we affirm the denial of defendant's second petition for post-conviction relief. We remand for entry of an amended judgment of conviction that reflects the mandated five-year period of parole supervision.

 

The availability of "exceptional circumstances" as an alternative basis for extension of the five-year limit appears to have been abrogated by the adoption in 2009 of Rule 3:22-12(c), which provides: "These time limitations shall not be relaxed, except as provided herein."

(continued)

(continued)

16

A-3501-06T4

 

August 11, 2010