STATE OF NEW JERSEY v. JOHN WESLEY POTEAT

NOT FOR PUBLICATION WITHOUT THE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.

JOHN WESLEY POTEAT,

Defendant-Appellant.

_____________________________________

June 15, 2015

Submitted April 22, 2015 Decided

Before Judges Fuentes, Ashrafi, and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 96-10-0575.

John Wesley Poteat, appellant, pro se.

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John Wesley Poteat appeals from an order denying his second petition for post-conviction relief (PCR). We affirm.

In 1997, defendant was convicted by a jury on multiple counts of an indictment charging first-degree murder, attempted murder, armed robbery, and several other offenses. On June 13, 1997, he was sentenced to two terms of life imprisonment for the murder and attempted murder, plus additional consecutive terms of imprisonment on other charges. The court set an aggregate parole ineligibility period of sixty-six-and-a-half years.

The heavy sentence was the consequence of defendant's extensive criminal record and the brutality of the violent crimes defendant and co-defendant Frederick Leon Simmons committed in the course of an armed robbery at a tavern in Wildwood. Defendant beat the bartender severely with a club and Simmons beat and stabbed a patron to death. Both defendant and Simmons were quickly identified and apprehended. Both made statements implicating themselves in the crimes, although defendant denied being a direct participant in the murder and the robbery.1

On direct appeal, we affirmed defendant's conviction and sentence, except that we remanded for a minor modification of the judgment of conviction. State v. Poteat, No. A-7163-96 (App. Div. May 21, 1999).2 The Supreme Court denied defendant's petition for certification. State v. Poteat, 163 N.J. 76 (2000). Defendant then filed a petition for PCR in March 2002, alleging ineffective assistance of counsel, which the PCR court denied on May 4, 2006.

Defendant filed this second PCR petition pro se on March 13, 2014, almost seventeen years after his conviction. He generally alleged that all the attorneys who represented him previously had been ineffective, but he did not set forth the particulars of their alleged ineffective representation. Instead, much of the petition alleged insufficiency of the evidence presented at his trial, thus indicating that defendant primarily contends his attorneys' lack of success in defending him against the charges demonstrated their ineffectiveness. Defendant also attempted to adopt by incorporation all prior arguments made in his direct appeal and in his first PCR petition. Finally, he alleged his sentence was illegal because of its severity as compared to lesser sentences statutorily authorized for his crimes.

By a form order dated March 25, 2014, the Law Division noted that this was a second or subsequent PCR petition and simultaneously denied it on the papers without further proceedings. The court added a handwritten notation to the form order stating "Petitioner's application is out of time."

On appeal, defendant argues

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S 2ND PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS ISSUES AS PRESENTED ON THE GROUNDS, AND ARGUMENTS ADOPTED BY REFERENCE FROM EXHIBITS.

A. The Prevailing Legal Principles Regarding Claims of Ineffective Assistance of Counsel, Evidentiary Hearings and Petitions for Post Conviction Relief.

POINT II

THE SENTENCE IMPOSED IS ILLEGAL, APPELLATE COURT TO CORRECT AN ILLEGAL SENTENCE.

POINT III

TRIAL JUDGE DENIED PRO SE REPRESENTATION OF PETITIONER, WITH NO FORMAL WRITTEN OPINION, NOR ORAL RECORD.

Although we are troubled by the absence of a more complete record of the PCR court's reasons for denial of this subsequent PCR petition, we have found nothing in defendant's brief on appeal or in the PCR petition itself that requires further review.

The form order used by the PCR court was in accordance with Directive #7-07 issued on September 20, 2007, by the Acting Administrative Director of the Courts to Assignment Judges and Criminal Division Judges. Administrative Office of the Courts, Directive #7-07, "Post-Conviction Applications on Indictable Offenses New Form Order" (Sept. 20, 2007), available at http://www.judiciary.state.nj.us/directive/2007/dir_07_07.pdf. The form contains preprinted sections permitting PCR judges to address by means of check-offs and brief additional text the various issues pertinent to a second or subsequent PCR petition, including the court's ultimate decision. However, the Directive also instructs

In addition to completing the order, the judges are asked to provide written reasons when a pro se litigant files a second or subsequent petition for post conviction relief and the relief sought is denied. The written reasons for such denial can be included within or attached to the court's order denying relief.

Here, the PCR judge's short handwritten phrase provided the reason that the petition was denied, it was untimely, having been filed far beyond the ordinary five-year time limitation for a PCR petition stated in Rule 3:22-12(a)(1). However, subsection (a)(2) of the same rule provides alternative and potentially additional time periods for the filing of a second or subsequent petition.3 Because that part of the rule contains specificities that should be addressed in more detail, the PCR court would have been better advised to attach a more thorough statement of its findings and reasoning in denying defendant's petition.

Nevertheless, our independent review of the petition discloses no basis covered by subsection (a)(2) to relax the time limitations of the rule and to permit the filing of this petition almost seventeen years after defendant's conviction. Many of defendant's contentions are stated almost entirely through general statements of law, without specific application to the circumstances of this case. Others are stated as references to the trial evidence, but those issues were previously addressed or could have been addressed on direct appeal or in the first PCR petition. In the latter regard, the current petition is barred by Rules 3:22-44 and -55 as well as by the time limitations of Rule 3:22-12.

Finally, while it is true that an application to vacate an illegal sentence can be brought at any time, see State v. Paladino, 203 N.J. Super. 537, 549 (App. Div. 1985); State v. Sheppard, 125 N.J. Super. 332, 336 (App. Div.), certif. denied, 64 N.J. 318 (1973), defendant's contentions do not demonstrate that his sentence is illegal; they only challenge its terms and severity. See generally State v. Murray, 162 N.J. 240, 246-49 (2000).

We find insufficient merit in any additional arguments defendant has made within the context of the argument points quoted previously to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 At a separate trial, Simmons was also convicted of all the charges.

2 The June 13, 1997 judgment was worded in a manner that suggested a twenty-year consecutive sentence imposed for the merged armed robbery counts would be served before the second life sentence. Our opinion ordered modification of the judgment to correct that technical error and to clarify that the two life sentences must be served first. Our record on this appeal does not indicate whether an amended judgment of conviction was ever issued. If not, the trial court should correct that omission.

3 Rule 3:22-12(a)(2) states

Second or Subsequent Petition for Post-Conviction Relief. Notwithstanding any other provision in this rule, no second or subsequent petition shall be filed more than one year after the latest of

(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or

(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or

(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.

4 Rule 3:22-4(b) states

Second or Subsequent Petition for Post-Conviction Relief. A second or subsequent petition for post-conviction relief shall be dismissed unless

(1) it is timely under R. 3:22-12(a)(2); and

(2) it alleges on its face either

(A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or

(B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted; or

(C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief.

5 Rule 3:22-5 states

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.