STATE OF NEW JERSEY v. KEVIN PAULK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6196-02T46196-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN PAULK,

Defendant-Appellant.

_________________________________

 

Submitted February 14, 2006 - Decided March 3, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

96-08-0708.

Yvonne Smith Segars, Public Defender, attorney for appellant (Francis T. Gleason, Jr., Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Kevin Paulk, appeals from an order denying his petition for post-conviction relief (PCR), which we now affirm. Following a jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1a(2), and fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4e. Because defendant had prior first-degree robbery convictions under Gloucester County Indictment No. 1212-05-84 and Camden County Indictment No. 714-03-91, he was sentenced to a term of life imprisonment without parole as a persistent offender in accordance with N.J.S.A. 2C:43-7.1a (three strikes law).

Defendant filed a direct appeal raising several points, including contentions that his sentence was illegal and that the three strikes law constituted cruel and unusual punishment in violation of both federal and state constitutions. Affirming the trial court, we noted that the evidence was overwhelming, specifically, defendant's confession to the crime and the witnesses who followed him into the woods and observed him take off his stocking mask after the holdup. Defendant's Petition for Certification was denied by the Supreme Court on September 8, 2000. State v. Paulk, 165 N.J. 529 (2000).

On February 15, 2001, defendant filed a pro se petition for PCR, which failed to raise any specific grounds, stating, "[t]he issue(s) that will be presented will be determined upon review of the trial and transcripts." Denying an evidentiary hearing in accordance with R. 3:22-5, the Law Division judge found petitioner raised the same issues he raised on direct appeal.

Defendant filed his Notice of Appeal on July 21, 2003. On July 17, 2003, defendant moved for a limited remand, claiming for the first time that his sentence was illegal, lacking the requisite predicate, because the 1991 first-degree robbery conviction under the Camden County Indictment had been reduced to a third-degree conviction. On September 5, 2003, we denied defendant's motion for a temporary remand without prejudice to its renewal if the relief sought is deemed necessary.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT WAS IN ERROR FOR FAILING TO CONDUCT AN EVIDENTIARY HEARING PRIOR TO SENTENCING DEFENDANT AS A PERSISTENT OFFENDER WHERE THE LEGALITY OF THE SENTENCE IMPOSED WAS IN ISSUE.

POINT II

THE COURT WAS IN ERROR FOR FAILING TO CONDUCT AN EVIDENTIARY HEARING ON THE PETITION FOR POST-CONVICTION RELIEF WHERE THE LEGALITY OF THE SENTENCE IMPOSED AND CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WERE IN ISSUE.

POINT III

THE TRIAL COURT WAS IN ERROR FOR FAILING TO SENTENCE DEFENDANT TO A TERM APPROPRIATE TO A CRIME ONE DEGREE LOWER IN THE INTEREST OF JUSTICE. (Not Presented Below).

We reject defendant's contentions.

Initially, we note that at defendant's sentencing on November 20, 1998, counsel for defendant expressly indicated that defendant did not assert his right to a hearing to controvert the nature of his prior convictions under N.J.S.A. 2C:43-7.1d. Instead, counsel advised that defendant intended to file applications for PCR "at some point in the future" to challenge the predicate convictions. Defendant, however, did not file PCR petitions from either conviction. Thus, at the time of sentencing, he qualified as a persistent offender under N.J.S.A. 2C:43-7.1 and the life term imposed was indeed legal.

Any challenge to the 1991 conviction should have been made by either filing a direct appeal or a petition for PCR from the 1991 conviction.

PCR is precluded where the issue is substantially equivalent to that previously decided on direct appeal. R. 3:22-5; State v. Afanador, 151 N.J. 41, 51 (1997). On direct appeal, we rejected defendant's pro se claim that the sentence imposed was illegal. Defendant, however, raised for the first time in his motion for a limited remand and now argues that there is sufficient evidence in the record to establish that the 1991 Judgment of Conviction was amended to third-degree robbery to afford him an evidentiary hearing. The record, however, does not support defendant's argument.

On November 1, 1991, a Final Judgment of Conviction was entered for first-degree robbery on the Camden County Indictment, imposing a thirty-year sentence with fifteen years of parole ineligibility. On July 14, 1995, defendant's motion for sentence reconsideration was granted. An Amended Order was entered on July 14, 1995, again setting forth that the final charge was first-degree robbery with an amended sentence of five years probation conditioned upon successful completion of the Mission Teens Program. On July 28, 1995, the judge signed an order submitted by defendant's counsel addressing only the modification of the sentence, entitled "Order For Modification of Sentence." Also on July 28, 1995, an Order was signed setting forth an Amended Final Judgment of third-degree robbery.

On November 1, 1996, a Change of Judgment Order was signed voiding the Amended Judgment of Conviction entered on July 28 and stating that the Amended Judgment of Conviction of July 14, 1996, is the controlling Order. Additional orders, dated November 12, and December 2, 1996, submitted by the prosecutor's office expressly declared the July 28 Amended Judgment of Conviction null and void as entered in error, and clarified that the Amended Judgment of July 14 granted just defendant's motion for reconsideration of the sentence. All these orders were executed by the same Law Division judge.

The record of the judgments of conviction before us establishes that defendant was indeed convicted of a first-degree 1991 predicate offense to support the three-strike life sentence and that the July 28 Amended Judgment, reciting a third-degree conviction, was entered in error and subsequently corrected. Simply stated, defendant has failed to present a prima facie case sufficient to warrant a limited remand to afford an evidentiary hearing, much less an evidentiary hearing on the legality of the sentence imposed under N.J.S.A. 2C:43-7.1.

Equally unavailing is defendant's contention, also raised for the first time on appeal, that he received ineffective assistance of counsel. Defendant's argument, that at the time he was sentenced his counsel should have argued that his 1991 first-degree conviction had been modified, is based upon pure speculation and not supported by the record. Had counsel made such an argument, it would not have been successful. Defendant's contention to the contrary lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Finally, we address defendant's Point III contention that the judge erred in failing to sentence him to one degree lower. Generally, excessiveness of a sentence, otherwise within authorized limits, is not an appropriate ground for post-conviction relief and can only be raised on direct appeal from the conviction, absent egregious circumstances. State v. Clark, 65 N.J. 426, 436-37 (1974). Defendant's contentions on appeal fail to establish egregious circumstances amounting to either fundamental injustice or error of constitutional dimensions. Accordingly, we are satisfied that defendant's contention is procedurally barred by R. 3:22-4, which precludes our consideration of trial error that should have and could have been raised in his direct appeal.

 
Affirmed.

At the same time, we granted defendant's motion to proceed as an indigent.

(continued)

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A-6196-02T4

March 3, 2006