STATE OF NEW JERSEY v. AIJALON ARAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5024-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AIJALON ARAD a/k/a WAYMON

BROWN,

Defendant-Appellant.

_________________________________

Submitted June 7, 2011 Decided July 6, 2011

Before Judges Parrillo and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-07-661.

Aijalon Arad, appellant pro se.

Marlene Lynch Ford, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Supervising Assistant County Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant, Aijalon Arad a/k/a Waymon Brown, appeals from an order of the Law Division denying his third petition for post-conviction relief (PCR). We affirm.

Tried by a jury, defendant was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1); first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; and third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c. On January 31, 1997, because of his record, defendant was sentenced as a persistent offender, N.J.S.A. 2C:44-3a, to a discretionary extended aggregate term of eighty years imprisonment with thirty years to be served without parole.

On direct appeal, we affirmed defendant's conviction and sentence, finding as to the latter, that the sentencing judge followed the proper standard in imposing an extended term:

Defendant had a prior conviction for first[-]degree armed robbery committed at age 19, for which he received a fifteen year state prison term. Paroled in 1989, he was sentenced in 1991 to probation for a 1983 drug offense. While on probation, he was involved in two school zone drug offenses, for which he was sentenced to five years with a three year period of ineligibility.

[State v. Brown, No. A-3961-96 (App. Div. Nov. 6, 1998) (slip op. at 4-5).]

The Supreme Court denied defendant's petition for certification. State v. Brown, 158 N.J. 71 (1999).

Thereafter, defendant filed his first PCR petition, which was denied by the trial court without oral argument, but remanded by this court on February 27, 2003 for further proceedings as required by State v. Rue, 175 N.J. 1 (2002). State v. Brown, No. A-2168-01 (App. Div. Feb. 27, 2003). Following a hearing on October 24, 2003, defendant's petition, stating that "[i]t's this Court's position that the legality of the extended-term sentence was challenged, and affirmed by the Appellate Division . . . however, now that it's being couched

. . . in terms of ineffective assistance of counsel, this Court must look at it to determine whether or not trial counsel was ineffective." In denying PCR relief, the judge found "that counsel reviewed certified copies of the judgments of convictions and, in fact, had no basis to argue against those convictions."

We affirmed the denial of PCR, rejecting as without merit, Rule 2:11-3(e)(2), defendant's argument that trial counsel was ineffective because he did not challenge the predicate convictions on which the extended term was based. State v. Brown, A-2474-03 (App. Div. Feb. 24, 2005) (slip op. at 3). The Supreme Court denied certification on May 25, 2005. State v. Brown, 183 N.J. 591 (2005).

Then on February 2, 2006, defendant filed a pro se petition for PCR, his second attempt to correct what he alleged was an illegal sentence. The trial court denied defendant's application, holding that "defendant's sentence comport[s] in all respects with the provisions of applicable statutes . . . and pursuant to the "Extended Term" provisions of N.J.S.A. 2C:43-7." We affirmed, concluding that "[d]efendant's claim of ineffective assistance of counsel for failing to challenge the predicate convictions upon which the extended term was based was adjudicated and rejected in our February 24, 2005 opinion, which affirmed the denial of defendant's first PCR petition." State v. Brown, No. A-5330-05 (App. Div. June 28, 2007) (slip op. at 4).

Thereafter, on March 16, 2009, defendant filed his third PCR application to correct an illegal sentence. On April 29, 2009, the Law Division judge issued his written decision denying defendant's request for PCR. He noted that the third petition "allege[s] that the sentence was illegal because the documents which the judge relied upon for imposing an extended sentence were not adequately reviewed by either counsel or the court [and] that one such document referred to the wrong defendant." The judge reviewed defendant's claims raised in the third petition and compared them to the claims raised on direct appeal and in the other petitions. He concluded that defendant had the opportunity to challenge his sentence three earlier times, and stated that the current grounds raised were essentially the same as the earlier ones and remain "merit less."

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

THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHT TO TRIAL BY JURY AS GUARANTEED UNDER THE SIXTH, FOURTEENTH AND THIRTEENTH AMENDMENTS, UNITED STATES CONSTITUTION, AND UNDER ARTICLE 1, PARAGRAPHS 8, 9, AND 10 OF THE NEW JERSEY CONSTITUTION (1947) BASED UPON THE IMPOSITION OF AN ILLEGAL EXTENDED TERM SENTENCE PURSUANT TO [N.J.S.A. 2C:44-3a], PERSISTENT OFFENDER ACT.

Essentially, defendant argues that, in determining his eligibility for extended-term sentencing as a persistent offender, the sentencing court wrongly considered two of his prior convictions separately when they should have counted for a singular offense under State v. Lado, 275 N.J. Super. 140, 158-59 (App. Div.), certif. denied, 138 N.J. 271 (1994). This argument, repeatedly rejected by this court and the Law Division, is totally without merit.

A persistent offender is:

a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

[N.J.S.A. 2C:44-3a.]

The record clearly evidences that defendant qualifies as a persistent offender and thus for extended term sentencing. In fact, during defendant's sentencing, the State represented that the "two prior third-degree crimes that defense counsel's referring to . . . are totally separate. They occurred on two different dates. . . . Not only do we have two different dates of occurrence, but the defendant was also sentenced on two different dates." The court agreed, noting that "[i]t appeared that there were two separate sentencings." And, that "[a]lthough there may have been concurrent treatment, they were separate offenses for separate sentencings." But in any event, as the court ultimately concluded, "[t]he fact remains, even if they were treated as one, [defendant] would have three [prior convictions]." Defense counsel then conceded that even if those two convictions were recognized as one, defendant would still be eligible for an extended term sentence.

Suffice it to say, not only has defendant's present claim been definitively adjudicated on several prior occasions, Rule 3:22-5, but is, as well, meritless. R. 2:11-3(e)(2).