STATE OF NEW JERSEY v. ROBERT LEE TERRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4656-08T44656-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT LEE TERRY,

Defendant-Appellant.

________________________________

 

Submitted: May 26, 2010 - Decided:

Before Judges C.L. Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 95-06-00574 and 95-06-00576.

Robert Lee Terry, appellant pro se.

Theodore J. Romankow, Union County Prosecu tor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Lee Terry appeals from a letter opinion dated May 8, 2009, denying his fourth application for post-conviction relief (PCR). Under Indictment No. 95-06-00576, a jury convicted defendant on June 26, 1996, of second-degree possession of a weapon by certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7, on which a term of nine years in prison was imposed with four years to be served without parole. Also on June 26, 1996, the same jury convicted defendant under Indictment No. 95-06-00574 of first-degree murder, contrary to N.J.S.A. 2C:11-3a; fourth-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(4); second-degree possession of a weapon for an unlaw ful purpose, contrary to N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b.

Defendant was sentenced to five years on the third-degree unlawful-weapons offense with thirty months to be served without parole, to be served consecutively to the sentence imposed under Indict ment No. 95-06-00576. He was also sentenced to a term of life in prison on the murder conviction, with thirty-five years to be served without parole, to be served consecutively to the five years on the third-degree crime. The second-degree crime was merged into the murder conviction for sentencing purposes. Finally, defendant was sentenced to eighteen months on the aggravated-assault conviction, to be served without parole and consecutive to the sentence on the murder conviction. The sentences on the two indictments combined required defendant to serve forty-three years without parole.

Defendant appealed his conviction and sentence; we affirmed the convictions but remanded for resentencing on the murder con viction, as extended-term sentencing for murder was not available at the time the crime was committed. State v. Terry, Nos. A-3371-96 and A-3382-96 (App. Div. July 1, 1998) (slip op. at 4, 23) (Terry I). We also found that the sentencing judge had not articulated the criteria necessary for the imposition of consecutive terms and remanded for reconsideration. Id. at 27. The Supreme Court denied certification. State v. Terry, 156 N.J. 426 (1998).

Defendant filed an amended petition for PCR in August 1999. State v. Terry, No. A-4207-99 (App. Div. Apr. 15, 2002) (slip. op. at 5) (Terry II). The PCR judge denied relief, id. at 6, and we affirmed, id. at 8. The Supreme Court denied certification. State v. Terry, 174 N.J. 364 (2002). Defendant filed his second PCR petition on March 19, 2003. State v. Terry, No. A-2334-03 (App. Div. Apr. 18, 2005) (slip op. at 3) (Terry III). The PCR judge denied relief, id. at 4, and we affirmed, id. at 6-7.

Defendant then filed a petition for a writ of habeas corpus under 28 U.S.C.A. 2253(c)(2), which was dismissed as untimely by order and opinion of August 16, 2006. Terry v. Cathel, No. 05-4644(DRD) (D.N.J. Aug. 16, 2006) (slip op. at 1), appeal denied, No. 06-4212 (3d Cir. Apr. 19, 2007) (Terry IV). No certificate of appealability was issued because "jurists of reason would not find it debatable whether the [p]eti tion is time-barred." Id. at 11. The United States Court of Appeals for the Third Circuit denied defendant's subsequent application for a certificate of appealability by order of April 19, 2007, because it was time-barred. Terry v. Cathel, No. 06-4212 (3d Cir. Apr. 16, 2007). Defendant's sur-petition for en banc rehearing was denied as well. Terry v. Cathel, No. 06-4212 (3d Cir. Jun. 6, 2007). The United States Supreme Court then denied defendant's petition for a writ of certiorari. Terry v. Ricci, 552 U.S. 1024; 128 S. Ct. 616; 169 L. Ed. 2d 397 (2007). Defendant subsequently filed an application to file a second or successive petition under 28 U.S.C.A. 2254, which was denied. In re Terry, No. 08-1795 (3d Cir. May 22, 2008) (Terry V).

Defendant promptly filed his third PCR petition with the Law Division on June 10, 2008 almost twelve years after his convictions. He argued in his petition:

POINT I - DEFENDANT IS ACTUALLY INNOCENT OF THE GREATER CRIME OF MURDER AND THEREFORE PREVAILS IN SATISFYING THE TWO PRONGS UNDER THE STRICKLAND[] STANDARD REQUIRING THAT IF NOT FOR ATTORNEY'S INEFFECTIVENESS THE OUTCOME OF TRIAL WOULD HAVE BEEN DIFFERENT.

POINT II - CONSTITUTIONAL CLAIMS, BOTH STATE AND FEDERAL IN THE INTEREST OF JUSTICE REQUIRE RELAXING THE PROCEDURAL BAR.

On May 8, 2009, the PCR judge issued the following decision:

Your letter in support of a change of sentence has been referred to me for review. Please note, however, th[at] N.J.S.A. 2C:44-5(a) states:

. . . when multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . such multiple sen tences shall run concurrently or consecutively as the court determines at the time of sentence.

The imposition of consecutive [sentences] does not offend due process rights under the Fourteenth Amendment or your right to a trial by jury under the Sixth Amendment. Your case was tried by a jury, and the jury made all factual findings as to the elements of the charges against you.

Furthermore, your claim of ineffective assistance of counsel is time barred. Therefore, your motion to correct an illegal sentence is denied.

This appeal followed. Defendant raises the following issues for our consideration:

POINT [ONE] - DEFENDANT IS ACTUALLY INNOCENT OF THE GREATER CRIME OF MURDER AND THEREFORE PREVAILS IN SATISFYING THE TWO PRONGS UNDER THE STRICKLAND STANDARD REQUIRING THAT IF NOT FOR ATTORNEY'S INEFFECTIVENESS THE OUTCOME OF TRIAL WOULD HAVE BEEN DIFFERENT.

POINT TWO - TRIAL COUNSEL RENDERED INEFFEC TIVE ASSISTANCE OF COUNSEL BY FAILING TO FULLY INFORM DEFENDANT THAT IF HE REFUSED PLEA BARGAIN HE WOULD FACE EXTENDED TERM, MULTIPLE CONSECUTIVE SENTENCES AND LIFE IF LOSING TRIAL.

POINT THREE - CONSTITUTIONAL CLAIMS, BOTH STATE AND FEDERAL IN THE INTEREST OF JUSTICE REQUIRE RELAXING THE PROCEDURAL BAR.

POINT FOUR - DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER THE SIXTH AMENDMENT RIGHT TO TRIAL BY JURY AND THE FOURTEENTH AMENDMENT DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION, AND UNDER ARTICLE I, PARAGRAPH 8, 9, AND 10, OF THE NEW JERSEY CONSTITUTION BASED UPON THE SENTENC ING JUDGE FINDING OF FACTS BY THE PREPONDER ANCE OF THE EVIDENCE TO IMPOSE CONSECUTIVE SENTENCES.

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, 162 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)). Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Id. at 421. Such a review is appropriate here.

Point Four was not raised before the third PCR judge. It is well-settled that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quot ing Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). This is particularly so when the opportunity to present the question or issue to the trial court was readily available. Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). These issues do not go to the jurisdiction of the trial court and do not involve a matter of public concern. Alan J. Corn blatt, P.A. v. Barow, 153 N.J. 218, 230 (1998). As a consequence, we decline to consider them. Ibid.

Additionally, defendant contends in Point Four that he was deprived of rights secured to him by the United States and New Jersey Constitutions because the sentencing judge found facts by a preponderance of the evidence in imposing consecutive sen tences. We reviewed defendant's sentence on direct appeal and remanded for resentencing on the issue of consecutive terms. Terry I, supra, Nos. A-3371-96 and A-3382-96 (slip op. at 27). No further direct appeal was filed from the resentencing, and the issue was not raised on the first and second PCR applications. Terry II, supra, No. A-4207-99 (slip op. at 5-8); Terry III, supra, No. A-2334-03 (slip op. at 2-6). This issue could readily have been raised previ ously. As a result, it is barred by virtue of Rules 3:22-3 (PCR is not a substitute for direct appeal); 3:22-4 (barring grounds for relief that could have been raised in prior proceedings) and 3:22-12(a) (barring petitions filed more than five years after rendition of the judgment or sentence). We find no exception to those rules that applies here.

Defendant claims in Point Two that his trial counsel was inef fective in failing to inform him of the maximum sentences he might receive if he elected to go to trial. This claim was apparently not raised on direct appeal or in any of his prior applications for PCR and habeas corpus. This issue is one that could readily have been raised in prior proceedings as it does not depend on discovery of facts not known to defendant at the time he was sentenced. As a result, it is barred by virtue of Rules 3:22-4 and 3:22-12(a). We find no exception to those rules that applies here.

With respect to Point One, it is likewise barred. Claims of ineffective assistance of trial, appellate, and PCR counsel were previously made on direct appeal, Terry I, supra, Nos. A-3371-96 and A-3382-96 (slip op. at 3-4); on the first PCR application, Terry II, supra, No. A-4207-99 (slip op. at 7-8); on the second PCR application, Terry III, supra, No. A-2334-03 (slip op. at 5); and on the first habeas corpus petition, Terry IV, supra, No. 05-4644(DRD) (slip op. at 4). To the extent that the present claims are a reiteration of ones made previously, they are barred by Rule 3:22-5 (prior adjudications are conclusive). To the extent that they are not, they are barred by Rules 3:22-4 and 3:22-12(a).

This leaves only Point Three for our consideration, whether constitutional claims, both state and federal, require relaxing the procedural bars in the interest of justice. Defendant relies on Rule 3:22-12(a), which provides for relaxation of the five-year time bar when a petition "alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." No other relaxation is permitted. R. 3:22-12(e). Defendant's petition makes no such factual allegations, which of course must be verified. As a result, there is basis on which to relax the five-year time bar of Rule 3:22-12(a).

 
Affirmed.

Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

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A-4656-08T4

August 2, 2010