STATE OF NEW JERSEY v. CRAIG BLACKMON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3823-07T43823-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CRAIG BLACKMON,

Defendant-Appellant.

___________________________

 

Argued March 9, 2009 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No. 85-11-1193.

Charles H. Landesman argued the cause for appellant (Law, Froelich & Landesman, attorneys; Mr. Landesman, on the brief).

William P. Fisher, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Fisher, on the brief).

PER CURIAM

Defendant Craig Blackmon appeals from the denial of his third application for post-conviction relief (PCR). We affirm.

Defendant was convicted on February 18, 1988, of murder, N.J.S.A. 2C:11-3(a)(1); felony murder, N.J.S.A. 2C:11-3(a)(3); aggravated sexual assault, N.J.S.A. 2C:14-2(a)(6); aggravated sexual assault while armed with a weapon, N.J.S.A. 2C:14-2(a)(4); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Defendant was sentenced on June 17, 1988, to life, subject to parole ineligibility of thirty years, on the murder count. A consecutive twenty years, subject to parole ineligibility of ten, was imposed on the aggravated sexual assault. The remaining convictions were merged.

On August 25, 1992, defendant's murder conviction was affirmed. State v. Blackmon, No. A-5648-87 (App. Div. August 25, 1992), certif. denied, 130 N.J. 599 (1992). His conviction for aggravated sexual assault, however, was merged into the murder count, and the possession of a weapon was unmerged and remanded for sentencing. Id. at 10. On September 11, 1992, defendant was resentenced to five years, subject to two-and-a-half of parole ineligibility, on the weapons count. The sentence was to be served consecutive to the life term imposed on the murder count. Defendant was denied certification by our Court. Blackmon, supra, 130 N.J. 599. On October 21, 1993, we denied defendant's excessive sentence appeal. State v. Blackmon, No. A-1334-92 (App. Div. October 21, 1993).

On June 21, 2001, we affirmed the order denying defendant's first petition for PCR. State v. Blackmon, No. A-6400-98 (App. Div. June 21, 2001), certif. denied, 170 N.J. 89 (2001). On July 12, 2006, we affirmed the order denying defendant's second petition for PCR. State v. Blackmon, No. A-3306-04 (App. Div. July 12, 2006), certif. denied, 189 N.J. 429 (2007). Defendant now appeals the denial of his third petition for PCR.

On appeal, defendant asserts:

POINT I

DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE HIS SENTENCE FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE IS CONSECUTIVE TO HIS SENTENCE FOR MURDER.

A. DEFENDANT IS NOT PROCEDURALLY BARRED FROM RAISING THE CLAIM THAT HIS SENTENCE IS ILLEGAL BECAUSE A PETITION TO CORRECT AN ILLEGAL SENTENCE MAY BE FILED AT ANY TIME.

B. DEFENDANT'S SENTENCE FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE MERGED WITH HIS SENTENCE FOR MURDER.

C. THE AFFIRMANCE OF DEFENDANT'S SENTENCE BY THE APPELLATE DIVISION DOES NOT BAR DEFENDANT FROM RAISING THE CONTENTION THAT THE CONSECUTIVE SENTENCE IMPOSED UPON HIM WAS ILLEGAL BECAUSE THIS CLAIM WAS NOT ADJUDICATED ON THE MERITS.

POINT II

THE IMPOSITION OF POST-CONVICTION RELIEF PROCEDURAL BARS TO THE CORRECTION OF THE DEFENDANT'S ILLEGAL SENTENCE RESULTS IN A VIOLATION OF EQUAL PROTECTION.

At this juncture, defendant's arguments as to merger and the legality of his sentence are barred pursuant to Rule 3:22-5. The matter has been previously adjudicated. As we said in our opinion denying defendant's appeal as to his first petition for PCR:

We also concluded, however, that the trial judge had erred by not having merged the aggravated sexual assault into the murder conviction. Accordingly, we vacated the separate conviction on the aggravated sexual assault charge and "unmerged" the weapon conviction, which the judge had merged into the sexual assault charge, remanding to the trial court on the weapon charge "for whatever action . . . [it] deems appropriate, including resentencing on that conviction." On that remand, the court imposed a consecutive sentence of five years subject to two-and-a-half years of parole ineligibility.

Defendant's petition for certification was denied, State v. Blackmon, 130 N.J. 599 (1992), and defendant then appealed from the resentencing on the weapon conviction. That appeal was heard on this court's excess sentencing calendar in 1993, and we affirmed.

. . . .

We are also satisfied that post-conviction relief respecting the merger of the weapon offense is procedurally barred and hence that the trial court erred in affording that relief. Our original opinion on direct appeal, as we have noted, "unmerged" the weapons offense. Since the scope of our remand was for appropriate action on that conviction, it is arguable that we did not preclude merger. But we are also satisfied that by 1992, it was already clear that if the sole unlawful purpose of the possession, supported by the evidence and charged to the jury, is commission of the underlying crime, acquittal of the underlying crime requires acquittal of the unlawful possession and thus, conversely, conviction of the underlying crime requires merger. See, e.g., State v. Jenkins, 234 N.J. Super. 311, 315 (App. Div. 1989). We do not read State v. Diaz, 144 N.J. 628 (1996), as creating a new principle of law. Consequently, defendant had the opportunity to raise the merger issue not only on the remand but also on the appeal therefrom.

Aside from the five-year procedural bar of R. 3:22-12, R. 3:22-4 bars post-conviction relief on any ground that could have been but was not raised on direct appeal. We are not persuaded as to the applicability of any of the exceptions prescribed by that rule. Since in our opinion on direct appeal, we specifically authorized the trial court, as one of the options on remand, to resentence on the weapons offense as a separate offense, we cannot now conclude that such a sentence was illegal. Cf. State v. Adams, 227 N.J. Super. 51 (App. Div.), certif. denied, 113 N.J. 642 (1988). Indeed, to that extent, the bar of R. 3:22-5 appears to apply, namely, the bar against grounds already decided. That is to say, the trial court on remand sentenced consistently with our direction.

The order, to the extent it denied defendant post-conviction relief, is affirmed. We reverse, however, the order of the court merging the weapon offense. We once again "unmerge" that conviction and remand to the trial court for entry of a modified judgment of conviction consistent with this opinion.

[Blackmon, supra, slip op. at 5, 12-13.]

Certification was denied on the appeal from that decision. Blackmon, supra, 170 N.J. 89. Even if we characterize defendant's claim as an illegal sentence in order for him to avoid the five-year timebar contained in Rule 3:22-12(a), defendant faces the application and resulting bar of Rule 3:22-5. Defendant, therefore, has no recourse by way of PCR. Defendant's contention that the application of procedural bars denies him equal protection under the law lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-3823-07T4

June 15, 2009