STATE OF NEW JERSEY v. VERNON L. SIMMONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3489-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VERNON L. SIMMONS,

Defendant-Appellant.

_______________________________________

May 19, 2011

 

Submitted March 29, 2011 Decided

 

Before Judges Yannotti and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 84-05-0320.

 

Vernon L. Simmons, appellant pro se.

 

RobertD. Bernardi,Burlington County Prosecutor, attorney for respondent (Jennifer B.Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Vernon L. Simmons appeals from an order entered by the Law Division on January 6, 2010, which denied his fourth petition for post conviction relief (PCR). We affirm.

Defendant was charged under Burlington County Indictment No. 84-05-0320, with first-degree murder in violation of N.J.S.A. 2C:11-3(a)(1) (purposely causing death or serious bodily injury resulting in death) (count one); first-degree murder in violation of N.J.S.A. 2C:11-3(a)(2) (knowingly causing death or serious bodily injury resulting in death) (count two); second-degree possession of a weapon (a firearm) for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (count three); and third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (count four).

Defendant was tried before a jury. At the trial, the State presented evidence which established that, on March 13, 1984, a man approached a parked car and smashed the window in order to get at the occupant, Herman Bracey (Bracey). Bracey exited the car and the man, who was positively identified as defendant, shot him at least four times. Bracey was taken to a hospital and placed on a respirator. Nine days later, he was determined to be brain dead and the respirator was removed. The cause of his death was a gunshot wound to his head.

The jury found defendant guilty on counts one, two and four. On February 22, 1985, the court sentenced defendant to concurrent terms of life imprisonment, with a thirty-year period of parole ineligibility, on counts one and two; and a concurrent five-year term on count four. A judgment of conviction was entered that day.

Defendant appealed and argued that the trial court erred by denying his motion for a judgment of acquittal because the removal of the victim's respirator was allegedly a superseding cause of death. Defendant also argued that the court's jury charge on intervening causation was flawed. Defendant additionally argued that the conviction on count two should be merged with the conviction on count one.

We rejected these arguments and affirmed defendant's convictions, noting that "[t]here was clearly sufficient credible evidence in the record for a finding beyond a reasonable doubt that the victim was dead prior to the cessation of life-sustaining efforts." However, we merged the murder convictions and vacated the sentence imposed on count two. State v. Simmons, No. 3370-84 (App. Div. Jan. 23, 1987) (slip op. at 4). The Supreme Court denied defendant's petition for certification. State v. Simmons, 107 N.J. 628 (1987).

Thereafter, defendant filed his first PCR petition, in which he alleged that he had been denied the effective assistance of counsel because his trial attorney failed to raise the issue of intervening causation and failed to recall certain witnesses. The PCR court denied the petition on March 13, 1988, and defendant appealed.

We affirmed the denial of PCR, stating that defendant's appeal was simply "a reargument of issues concerning the cessation of medical treatment of the victim," which were matters we had thoroughly considered in defendant's direct appeal. State v. Simmons, No. A-3914-87 (App. Div. Apr. 10, 1989) (slip op. at 2 ). The Supreme Court denied defendant's petition for certification. State v. Simmons, 117 N.J. 158 (1989).

Several years later, defendant filed a second PCR petition. He claimed that the trial court erred by: admitting certain evidence; denying his motion for a mistrial, and denying a motion to suppress. The PCR court denied the petition. Defendant appealed, and we affirmed, noting that the issues raised by defendant in his PCR petition were barred by Rule 3:22-4 and otherwise without merit. State v. Simmons, No. A-4107-89 (App. Div. Nov. 4, 1992) (slip op. at 2-3). The Supreme Court denied defendant's petition for certification. State v. Simmons, 137 N.J. 313 (1994).

Thereafter, defendant filed a third petition for PCR, in which he alleged that the trial court erred by allowing certain arguments, and the issue of the removal of the respirator should have been presented to the court. He further claimed that the court had erroneously charged the jury on the issue of intervening cause.

The PCR court entered an order dated April 11, 2005, denying the petition. Defendant filed a motion for reconsideration. By order dated April 22, 2005, the PCR court denied the motion. Defendant appealed, and we affirmed. State v. Simmons, No. A-5331-04 (App. Div. Mar. 6, 2006) (slip op. at 3).

On October 13, 2006, defendant filed a fourth petition for PCR.1 He alleged that: his rights to a fair trial, equal protection and due process had been violated as a result of certain prosecutorial misconduct; his right to a fair and impartial jury had been violated by juror tampering and misconduct; his sentence was illegal because N.J.S.A. 2C:11-3 allows for disparate treatment of defendants sentenced for murder; and the sentence is illegal because the indictment was defective due to a lack of jurisdiction.

The PCR court filed a written opinion dated January 5, 2010, in which it concluded that the issues raised by defendant were barred by Rule 3:22-12 and Rule 3:22-4. The PCR court entered an order dated January 6, 2010, denying PCR. Defendant filed a motion for reconsideration, which the PCR court denied by order entered on January 20, 2010. This appeal followed.

Defendant raises the following arguments for our consideration:

ISSUE #1:

PETITIONER CONTENDS HIS FUNDAMENTAL RIGHTS TO A FAIR TRIAL, EQUAL PROTECTION & DUE PROCESS, GUARANTEED BY [NEW JERSEY CONSTITUTION SECTION] 1, [PARAGRAPHS] 7, 8, 9, 10; & [UNITED STATES CONSTITUTION AMENDMENTS] 4, 5, 6, 14 WERE DEPRIVED HIM DUE TO PROSECUTORIAL MISCONDUCT, NEGLIGENT POLICE WORK & JUDICIAL ERROR, ENDING IN FUNDAMENTAL DEFECT AMOUNTING TO COMPLETE MISCARRIAGE OF JUSTICE, THUS, REVERSAL OF CONVICTION IS WARRANTED.

 

ISSUE #2:

DEFENDANT CONTENDS HIS RIGHTS TO A FAIR TRIAL & IMPARTIAL JURY, GUARANTEED BY [NEW JERSEY CONSTITUTION] (1947), [ARTICLE] 1, [PARAGRAPH] 10; [UNITED STATES CONSTITUTION AMENDMENTS] 6, 14 WERE DEPRIVED HIM DUE TO JUROR TAMPERING & JUROR MISCONDUCT WHEN JUROR #11 COMMUNICATED AN INCIDENT THAT TOOK PLACE INVOLVING HER & A WITNESS IN PARKING LOT OF COURT HOUSE TO OTHER JURORS. THE COMMUNICATIONS OF SAID INCIDENT PREJUDICE[D] JURY AGAINST DEFENDANT AND CONTAMINATED VERDICT. REQUIRING REVERSAL OF CONVICTION.

 

ISSUE #3:

[N.J.S.A.] 2C:11-3 PROVIDES FOR ILLEGAL SENTENCES IN THAT IT ALLOWS FOR UNEQUAL TREATMENT OF DEFENDANTS WHO ARE CONVICTED AND SENTENCED FOR MURDER, IN VIOLATION OF [THE] LEGISLATURE[']S INTENT AND DEFENDANT[']S EQUAL PROTECTION RIGHTS, GUARANTEED BY [NEW JERSEY CONSTITUTION ARTICLE] 1, [PARAGRAPHS] 1, 8 AND [UNITED STATES CONSTITUTION AMENDEMENT] 14. THEREFORE, IT MUST BE STRUCK DOWN AS UNCONSITUTTIONAL.

 

SUPPLEMENTAL ISSUE: ILLEGAL CONVICTION & SENTENCE BECAUSE OF LACK OF JURISDICTION.

 

We have thoroughly reviewed the record before us on this appeal, and conclude that the issues raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by the PCR court in its written opinion dated January 6, 2010. We add the following brief comments.

The PCR court correctly determined that defendant's fourth PCR petition was barred by Rule 3:22-12 (amended 2010). The rule in effect when defendant filed his fourth PCR petition provided that a petition for PCR must be filed within five years of the date on which the judgment of conviction was entered unless a defendant shows that the delay was due to excusable neglect and "there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Ibid. Defendant's fourth PCR petition was filed more than twenty-one years after the entry of the judgment of conviction. He has not established that this lengthy delay was due to "excusable neglect" or that enforcement of the time bar would be "a fundamental injustice."

A sentence is illegal if it exceeds the penalties established by law for the specific offense, or was not imposed according to law. State v. Murray, 162 N.J. 240, 246-47 (2000). The life sentence imposed here was permitted by N.J.S.A. 2C:11-3(b)(1). Furthermore, defendant's constitutional challenge to the statute could have been raised earlier and was, in any event, without factual support.

In addition, the PCR court found that the issues raised in defendant's fourth PCR petition were barred by Rule 3:22-4, which states that issues raised in a PCR petition are barred if they could have been raised in a prior proceeding. Clearly, defendant could have raised the issues presented in the fourth PCR petition in either the direct appeal or one of the three prior PCR petitions. Moreover, application of the procedural bar to this petition would not result in a "fundamental injustice," R. 3:22-4(a)(2), and denial of relief would not be contrary to any new rule of State or Federal constitutional law, R. 3:22-4(a)(3).

Affirmed.

1 We note that in addition to his four PCR petitions, defendant filed two petitions for habeas corpus in the United States District Court for the District of New Jersey. The petitions were denied. Simmons v. Morton, No. 95-2487 (D.N.J. Nov. 22, 1995); Simmons v. Beyer, No. 91-1115 (D.N.J. Aug. 23, 1991). On November 20, 1991, the United States Court of Appeals for the Third Circuit denied defendant's request for a certificate of appealability, and thereafter the United States Supreme Court denied defendant's petition for writ of certiorari. Simmons v. Beyer, 503 U.S. 944, 112 S. Ct. 1495, 117 L. Ed. 2d 635 (1992). The United States District Court for the District of New Jersey denied defendant's motion for reconsideration of his second petition for writ of habeas corpus. Simmons v. Morton, No. 95-2487 (D.N.J. Sept. 10, 2002).