STATE OF NEW JERSEY v. NORMAN REID

NOT FOR PUBLICATION WITHOUT THE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.

NORMAN REID,

Defendant-Appellant.

__________________________________________________

June 15, 2015

Submitted April 28, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-11-1122.

Norman Reid, appellant pro se.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Norman Reid appeals from the May 20, 2013 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

We discern the following facts from the record. On January 16, 1997, a jury convicted defendant of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b). The trial court granted the State's motion for an extended term pursuant to N.J.S.A. 2C:43-3(a) and N.J.S.A. 2C:43-7. The trial court merged the aggravated manslaughter count and the possession of a weapon for an unlawful purpose count, and sentenced defendant to life in prison with twenty-five years of parole ineligibility. The conviction for unlawful possession of a weapon was merged with possession of a weapon by a convicted person, for which defendant received a ten year sentence with five years of parole ineligibility to run consecutive to the aggravated manslaughter sentence.

Defendant appealed, and this court affirmed the convictions, but remanded the case for re-sentencing. State v. Reid, No. A-5538-03 (App. Div. June 19, 2006). The Supreme Court denied certification. 162 N.J. 199 (1999). Defendant then filed a PCR petition, which was denied on December 8, 2000. On that same day, the trial court re-imposed defendant's original sentence. On November 26, 2003, this court affirmed the denial of defendant's first PCR petition. Thereafter, defendant was granted leave to appeal his resentencing, and on September 22, 2005, this court remanded the matter for a rehearing pursuant to State v. Natale, 184 N.J. 458 (2005). The trial court again re-imposed defendant's original sentence. Defendant appealed, and this court affirmed. State v. Reid, No. A-5538-03 (App. Div. June 19, 2006). The Supreme Court denied certification. 188 N.J. 358 (2006). Defendant also filed a writ of habeas corpus petition in federal court, which was denied in 2009.

Defendant filed his second PCR petition on February 11, 2008. The trial court denied defendant's petition on March 26, 2008, without oral argument, finding that his claims were barred by Rule 3:22-5. Defendant appealed and this court affirmed on June 23, 2008. Defendant filed the current PCR petition on February 24, 2012. Defendant's petition argued that his sentence was illegal, and he was entitled to a rehearing of his sentence under State v. Pierce, 188 N.J. 155 (2006).

On May 20, 2013, Judge Joseph L. Foster denied defendant's third PCR petition. He determined that the petition was time-barred under Rule 3:22-12(a)(2) because Pierce was decided in 2006, leaving defendant one year from that date to file a PCR petition; however, the judge noted that defendant did not file this petition until six years later. The judge further rejected defendant's reliance on State v. Hudson, 209 N.J. 513 (2012) and State v. Hernandez, 208 N.J. 24 (2011), as neither of those cases established a new constitutional rule or applied retroactively.

Defendant raises the following points on appeal

POINT I: THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO CORRECT THE ILLEGAL SENTENCE.

POINT II: THE DEFENDANT IS ENTITLED TO BE RE-SENTENCED IN ACCORDANCE WITH STATE V. PIERCE BECAUSE HIS CASE WAS ON DIRECT APPEAL WHEN THAT CASE WAS DECIDED.

POINT III: THE DEFENDANT IS NOT ELIGIBLE FOR AN EXTENDED TERM BECAUSE THE DECEMBER 10, 1993 CONVICTION IS NOT A CONVICTION ON A "SEPARATE OCCASION" FOR ENHANCEMENT PURPOSES.

We begin with a review of the well-established legal principles that guide our analysis. PCR constitutes New Jersey's "analogue to the federal writ of habeas corpus." State v. Jones, 219 N.J. 298, 310 (2014) (citing State v. Afanador, 151 N.J. 41, 49 (1997)). To protect against courts addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings. Rule 3:22-12(a)(1) imposes a five-year limitation on filing a petition after the entry of the judgment sought to be challenged. A second or subsequent PCR petition may only be filed within one year of the recognition of a new constitutional right, discovery of a new factual predicate, or denial of the last PCR to address ineffective assistance of counsel or an earlier PCR petition. R. 3:22-12(a)(2).

While these time limits may be waived to prevent a fundamental injustice, they must be viewed in light of their dual key purposes: to ensure that the passage of time does not prejudice the State's retrial of a defendant and to respect the need for achieving finality. State v. DiFrisco, 187 N.J. 156, 166-67 (2006). Moreover, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was raised earlier, Rule 3:22-5.

Having carefully considered the record in light of the applicable legal principles, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons provided by Judge Foster in his May 20, 2013 written decision. We add only the following brief discussion.

We are satisfied that defendant's third PCR petition, filed fifteen years after the original conviction, six years after Pierce, and four years after the denial of his second PCR, without any claim or showing of excusable neglect or manifest injustice, is clearly time-barred. R. 3:22-12(a). Defendant has articulated no basis to relax the clear restrictions concerning subsequent PCR petitions imposed by this rule. Moreover, we conclude that defendant's claim of an illegal sentence is without merit as he was properly determined to be a persistent offender under N.J.S.A. 2C:44-3(a). The record shows that defendant was convicted of four separate crimes, committed on separate occasions. Indeed, in its June 19, 2006 decision affirming defendant's resentence, this court noted, "[t]here is no suggestion that [defendant] did not qualify as a persistent offender under N.J.S.A. 2C:44-3a, resulting in the sentence under N.J.S.A. 2C:43-7(a)(1)."

Affirmed.