STATE OF NEW JERSEY v. DUANE STEVENSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5734-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DUANE STEVENSON,

Defendant-Appellant.

________________________________

February 27, 2012

Submitted February 6, 2012 - Decided

Before Judges Parrillo and Grall.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

88-9-2900.

Duane Stevenson, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Duane Stevenson appeals from a June 2, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) in the form of a motion under N.J.S.A. 2C:43-6.3 for a reduction in sentence. We affirm.

Following a jury trial, on November 1, 1989, defendant was convicted of felony murder, N.J.S.A. 2C:11-3a(3); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); aggravated manslaughter, N.J.S.A. 2C:11-4a(1); and related weapons offenses, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:39-4a. On January 17, 1990, he was sentenced to an aggregate sentence of life imprisonment with a thirty-year parole bar. We affirmed the conviction, but remanded for resentencing, which had no effect on defendant's aggregate sentence. On January 16, 1992, the Supreme Court denied defendant's petition for certification. State v. Stevenson, 127 N.J. 557 (1992).

Thereafter, defendant filed a PCR petition, which was denied on November 7, 1994. We affirmed the denial and the Supreme Court subsequently denied his petition for certification.

In March 2010, more than twenty years after entry of defendant's judgment of conviction, defendant filed a pro-se motion for a reduction of sentence under N.J.S.A. 2C:43-6.3, seeking relief from his maximum sentence to the presumptive term of thirty years. The Law Division judge denied the application on both procedural and substantive grounds, reasoning:

Review of the matter reveals that this is an application for review of sentence not under [Rule] 3:22-12 so it's not a claim of an illegal sentence. Therefore, the five-year time requirement under 3:22-12 for application of PCR were to run as of January 17th of 1997.

Therefore, procedurally, the matter is out of time and is denied. However, substantively, review of the matter substantively indicates that part of the sentence occurred under the Graves Act which had a mandatory minimum which apparently was obviously affirmed by the Appellate Division and the Supreme Court didn't take cert on the 30-year parole ineligibility.

The 30 years has not yet run; therefore, any application for review of sentence would have to wait until the time for the mandatory minimum had expired. Also, under [N.J.S.A.] 2C:43-6.3 it was enacted on April 4th, 1989 and I believe it was applicable to matters that were currently pending in the Appellate Division or the Supreme Court on appeal as a stop [gap] measure was required to the changes in the law and this matter wasn't sentenced until January 17th of 1990, I believe, [N.J.S.A.] 2C:43-6.3 does not apply.

Also a motion to review a sentence does not apply. [N.J.S.A.] 2C:35-14 does not apply as . . . there was a conviction of first[-]degree robbery. Also the minimum stip time on a felony murder conviction would be 30 years which is what the defendant was sentenced to.

On appeal, defendant argues:

DEFENDANT'S COUNSEL'S FAILURE TO CONDUCT AN INVESTIGATION AND ASSIST IN ANY PART OF THE HEARING CONSTITUTE[S] INADEQUATE ASSISTANCE OF COUNSEL WARRANTING VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT TO COUNSEL GUARANTEED UNDER CONSTITUTION SIXTH AMENDMENT.

In essence, defendant contends that counsel was ineffective in failing to forcefully present a case for a sentence reduction under N.J.S.A. 2C:43-6.3. We deem this issue without any merit, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by the PCR judge in his oral opinion of June 2, 2010.

Affirmed.