STATE OF NEW JERSEY v. DEWAYNE SIMONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEWAYNE SIMONS,

Defendant-Appellant.

____________________________________________

December 12, 2013

Submitted October 8, 2013 Decided

Before Judges Messano and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 95-03-0646.

Dewayne Simons, appellant pro se.

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Following a waiver hearing in the Family Part, defendant Dewayne Simons was convicted of knowing, purposeful murder and other crimes. He was sentenced to life imprisonment with a thirty-year period of parole ineligibility. We affirmed defendant s conviction in an unpublished opinion, State v. Simons, No. A-0309-96 (App. Div. Feb. 8, 1999), and his petition for certification was denied. 162 N.J. 130 (1999). We subsequently affirmed the denial of defendant's first petition for post-conviction relief (PCR), State v. Simons, No. A-5015-02 (App. Div. Oct. 31, 2005), and the Court denied his petition for certification. 187 N.J. 82 (2006). We also affirmed the denial of defendant's second PCR petition, State v. Simons, No. A-0998-07 (App. Div. Nov. 26, 2008), and the Court again denied his petition for certification. 198 N.J. 313 (2009).

On September 7, 2012, defendant filed a motion for a change of sentence pursuant to Rule 3:21-10(b)(4) and (5).1 Defendant's certification included exhibits reflecting his participation in numerous programs and educational opportunities while incarcerated.

In a brief letter opinion, Judge Kyran Connor noted the "gravamen" of defendant's argument was that his sentence "was not authorized by law," because "a sentence of life imprisonment [was] not a sentence 'to a specific term of years.'" See N.J.S.A. 2C:11-3(b)(1) (1999) (an individual convicted of murder "shall . . . be sentenced to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole").

While finding defendant's argument "interesting," Judge Connor concluded that "the statute obviously contemplates that the rest of your life is in fact a specific term of years - even though the actual number of years will not be known until the day you die." The judge also determined that defendant's other contentions "raise[d] issues well beyond the scope of [Rule] 3:21-10," and were "either . . . addressed or could have been addressed on [defendant's] direct appeal or in [his] petitions for post-conviction relief." Judge Connor denied the motion and this appeal followed.

Before us, defendant raises the following points for our consideration:

POINT I

DEFENDANT WAS A JUVENILE, BUT HIS CASE WAS WAIVED UP FROM FAMILY COURT TO ADULT[,] HE WAS SENTENCED AND THE COURT FOUND NO MITIGATING FACTORS, WHICH HAD TO EXIST DUE TO HIM BEING A JUVENILE.

POINT II

TO CORRECT A SENTENCE BASED ON DEFENDANT S SENTENCE BEING INCONSISTENT WITH N.J.S.A. 2C:11-3, AS IT APPLIES TO ONLY TWO ALTERNATIVE SENTENCES OTHER THAN DEATH OR LIFE SENTENCE R. 3:21-10(b)(4) AND (5).

POINT III

DEFENDANT WAS ILLEGALLY CONVICTED OF PURPOSELY [SIC] MURDER BECAUSE THE INDICTMENT WAS IMPERMISSIBLE AND UNCONSTITUTIONAL WHEN IT FAILED TO SPECIFY WHETHER HE [DEFENDANT] WAS INDICTED UNDER EITHER N.J.S.A. 2C:11-3(a)(1) OR N.J.S.A. 2C:11-3(a)(2).

POINT IV

DEFENDANT'S, THEN JUVENILE'S, CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN HE WAS NOT AFFORDED THE RIGHT TO WAIVE HIS RIGHT IN THE PRESENCE OF AND AFTER CONSULTATION WITH COUNSEL BEFORE WAIVER, PURSUANT TO N.J.S.A. 2A:4A-20, 2A:4A-39(a), AND 2A:4A-39(b)(1).

POINT V

THE COURT DOUBLE COUNTED AGGRAVATING FACTOR SIX WHEN IT SENTENCED DEFENDANT, WHICH WAS USED TO WAIVE DEFENDANT UP FROM FAMILY COURT TO ADULT [] COURT.

POINT VI

THIS COURT SHOULD DIRECT THE TRIAL COURT TO RELAX THE RULE IN THIS MATTER SINCE THE APPELLANT WAS A JUVENILE AT THE TIME OF HIS TRIAL, AND WAS FORCED TO RELY ON HIS THEN COUNSEL WHO DISPLAYED THAT HE DID NOT HAVE APPELLANT'S BEST INTEREST AT HEART WHEN HE ADMITTED TO THE COURT THAT HE WAS NOT PREPARED, COUPLED WITH THE MOST RECENT RULING BY THE NEW JERSEY SUPREME COURT IN [IN RE V.A., 212 N.J. 1 (2012)].

We have considered these arguments in light of the record and applicable legal standards. We affirm substantially for the reasons set forth in Judge Connor's letter opinion. We add only the following.

As to the argument raised in Point II, Judge Connor correctly determined that defendant was not entitled to relief pursuant to Rule 3:21-10(b)(4) or (5). Rule 3:21-10(b)(4) does not apply at all because it was adopted, effective the same day the Criminal Code became effective, so as to permit "a defendant serving a sentence greater than the Code authorized maximum for an equivalent pre-Code offense, to move for re-sentencing under the Code." State v. James, 343 N.J. Super. 143, 147 (App. Div. 2001). Defendant was not serving a pre-Code sentence. Subsection (b)(5) also does not apply because, as Judge Connor correctly noted, a sentence of life imprisonment for murder is permitted by the Code.

The arguments contained in Points I, III, IV and V of defendant's brief were presented to Judge Connor, who correctly determined that the claims were procedurally-barred. See R. 3:22-4 (barring consideration of issues that could have been presented in prior proceedings); R. 3:22-5 (barring consideration of issues already decided in prior proceedings).

In Point VI, defendant argues that he should be relieved of any procedural bars because trial counsel provided ineffective assistance at the waiver hearing and because of the Court's recent decision in V.A., supra. Defendant did not present this argument to Judge Connor. Nevertheless, we consider its merits.

Defendant's claim of ineffective assistance of counsel is both procedurally- and time-barred. R. 3:22-4; R. 3:22-5; see also R. 3:22-12(a)(2) (permitting the filing of a "second or subsequent petition" only within one year of certain events, none of which apply here); R. 3:22-12(c) (providing that the time limitations shall not be relaxed). Defendant presents no principled reason why he should be entitled to relief from these constraints.

In V.A., supra, 212 N.J. at 22-26, the Court decided that prosecutorial waiver decisions should be reviewed under an abuse of discretion standard, not a more deferential patent and gross abuse of discretion standard. However, defendant fails to explain how the holding in V.A.inures to his benefit.

The waiver decision in this case pre-dated the 2000 amendments to the juvenile waiver statute, N.J.S.A. 2A:4A-26. As the Court noted in V.A., supra, 212 N.J. at 10, the amendments reflected the Legislature's "move[] in one direction: easing the conditions for waiver for the State, and concomitantly rendering it more difficult for the juvenile to avoid waiver of jurisdiction by the Family Part." The V.A.Court may have chosen to apply a less deferential standard of review to prosecutorial decision-making in the waiver context. But nothing in the opinion supports the conclusion that defendant would have fared better, i.e., waiver would have been denied, had a less-deferential standard of review of the prosecutor's decision been applied in this case.

1 Subsection (b) of the Rule provides in relevant part:

A motion may be filed and an order may be entered at any time . . . (4) changing a sentence as authorized by the Code of Criminal Justice, or (5) correcting a sentence not authorized by law including the Code of Criminal Justice . . . ."

[R. 3:21-10(b)(4) - (5).]