STATE OF NEW JERSEY v. ROBERT LEE EDWARDS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5117-07T45117-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT LEE EDWARDS,

Defendant-Appellant.

________________________________

 

Submitted: October 21, 2009 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 89-02-0257.

Robert Lee Edwards, appellant pro se.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Lee Edwards appeals from the denial of his ninth petition for post-conviction relief (PCR). Because the time for any PCR petition expired on August 30, 1995, we affirm.

On November 28, 1987, defendant invaded the home of a fifty-seven-year-old woman and her wheelchair-bound eighty-one-year-old mother, severely beating the daughter, sexually assaulting her in front of her mother, robbing the women, and holding them in terror for one and one-half hours. The police subsequently apprehended defendant and he confessed his crimes.

A nineteen-count indictment was thereafter returned. On January 5, 1990, defendant pled guilty to first-degree kidnap ping, first-degree aggravated sexual assault, two counts of first-degree armed robbery and two counts of second-degree armed burglary. The plea agreement contained no recommended sentences but the prosecutor agreed to dismiss the remaining thirteen counts.

The judge sentenced defendant on August 30, 1990, to (1) a thirty-year term of imprisonment subject to a fifteen-year parole disqualifier on the kidnapping conviction; (2) a ten-year term subject to a five-year parole disqualifier on one burglary conviction, to be served consecutively to the term imposed on the kidnapping conviction; (3) a twenty-year term subject to a ten-year parole disqualifier to be served at the Adult Diagnos tic and Treatment Center at Avenel (Avenel) on the aggravated sexual-assault conviction, to be served consecutively to the term imposed on the burglary conviction; (4) two twenty-year terms on the robbery convictions, both to be served concurrently with the term imposed on the kidnapping conviction; and (5) a ten-year term on the second burglary conviction, to be served concurrently with the term imposed on the kidnapping conviction. Defendant's aggregate sentence was sixty years imprisonment with a thirty-year parole disqualifier.

Defendant filed a direct appeal of his sentence, which we affirmed. State v. Edwards, No. A-1046-90 (App. Div. May 16, 1991), certif. denied, 126 N.J. 388 (1991). Defendant then filed his first PCR petition. The judge conducted an eviden tiary hearing on December 21, 1992, and denied the petition. Defendant appealed; we affirmed, No. A-4906-92; and the Supreme Court denied certification. State v. Edwards, 142 N.J. 448 (1995). Defendant filed a habeas corpus petition, which was denied by the United State District Court for the District of New Jersey on May 26, 1995.

Defendant returned to state court and filed a second PCR petition, which was denied on May 6, 1999, as time-barred. He then filed a "motion for a new trial," so styled to avoid the time bar, which was denied on January 31, 2000, and a "fourth application for Post-Conviction Relief," which was denied on February 26, 2001. State v. Edwards, Nos. A-3423-99 and A-3765-00 (App. Div. Feb. 19, 2002) (slip op. at 2-3). We affirmed both orders because the issues had been previously litigated, Rule 3:22-5, and the petitions were time-barred, Rule 3:22-12. Id. at 5-6. The New Jersey Supreme Court denied certification. State v. Edwards, 174 N.J. 194 (2002), cert. denied sub nom., Edwards v. New Jersey, 537 U.S. 1090, 123 S. Ct. 691, 154 L. Ed. 2d 635 (2002).

While these appeals were pending, defendant filed his fifth PCR petition, which was denied as time-barred on August 10, 2001. Defendant then moved to correct an illegal sentence, his sixth PCR application, in which he contended "that the court indicated that he would serve his initial sentence at [Avenel] before being placed into the general prison population." The application was denied on October 24, 2001. The judge found "that initial placement of the defendant within the Department of Corrections was not determinative of his willingness to plead, but rather serves as a convenient excuse to re-litigate the case[.]" We then affirmed the denial of defendant's fifth PCR petition, concluding that defendant was not entitled to an evidentiary hearing and he had made no showing of excusable neglect to avoid the time bar of Rule 3:22-12. State v. Edwards, No. A-0255-01 (App. Div. Nov. 22, 2002).

The judge denied defendant's sixth PCR petition under Rule 3:22-5 on January 5, 2006, because the grounds for relief "ha[d] been previously adjudicated on identical grounds." On February 9, 2006, defendant filed his seventh PCR petition, which was denied on March 1, 2006, on identical grounds. Defendant appealed both denials and we summarily dismissed both appeals. State v. Edwards, Nos. A-2970-05 and A-3751-05 (App. Div. June 28, 2006), certif. denied, 188 N.J. 493 (2006). On January 2, 2007, defendant filed his eighth PCR petition, which was denied as well.

On October 24, 2007, defendant filed his ninth PCR peti tion, which the judge denied on May 1, 2008, as time-barred under Rule 3:22-12; contrary to the State's interest in finality of judgments, as recognized by Rule 3:22-4, because the claims could have been raised in prior proceedings; and barred as hav ing been previously adjudicated under Rule 3:22-5. The judge found "at the very least, all your points are substantially equivalent to issues you have raise[d] in your first eight (8) PCRs. You cannot couch the same claims in different verbiage to avoid this bar." This appeal followed.

Defendant raises the following issues on appeal:

POINT I - IF APPELLATE COURT DECIDES THE APPEAL BY SUMMARY DISPOSITION IT SHALL RESULT IN A MANIFEST CONTINUAL DENIAL OF THE CORRECTION OF APPELLANT'S RIGHTS GUARANTEED BY U.S. CONSTITUTION AMENDMENTS FIVE (5), SIX (6), AND FOURTEEN (14), AND NEW JERSEY CONSTITUTION ARTICLE ONE (1) PARAGRAPH TEN (10).

A. The breach of oral contract by judge at time of sentencing is per se constitutional violation constitutionally overriding New Jersey Court Rule(s) which ordi narily may time-bar and or proce durally-bar and subject the appeal to summary disposition.

POINT II - TRIAL COURT ABUSED DISCRETION BY FAILURE TO RELAX COURT RULE(S) PURSUANT TO RULE 1:1-2 AND ASSIGN COUNSEL AND HOLD EVI DENTIARY HEARING RESULTING IN A MANIFESTED CONTINUAL DENIAL OF THE CORRECTION(S) OF APPELLANT'S RIGHTS GUARANTEED BY U.S. CON STITUTION AMENDMENTS FIVE (5), SIX (6), AND FOURTEEN (14), AND NEW JERSEY CONSTITUTION ARTICLE ONE (1) PARAGRAPH (10).

A. Trial court failure to assign counsel to assist mentally impaired appellant who has no for mal training in the practice of law denied him the right to fairly present arguments to the court.

B. Trial court failure to hold an evidentiary hearing on per se violations is contradictory to U.S. Supreme Court decisions and federal court decisions.

POINT III - DIRECT APPEAL COUNSEL RENDERED HIGHLY PREJUDICIAL INEFFECTIVE RESULTING IN THE VIOLATION OF APPELLANT'S RIGHTS GUARAN TEED BY U.S. CONSTITUTION AMENDMENTS FIVE (5), SIX (6), AND FOURTEEN (14), AND NEW JERSEY CONSTITUTION ARTICLE ONE (1) PARAGRAPH TEN (10).

A. Direct appeal counsel pro vided the nominal representation that a layman in practicing would have been capable of rendering.

In his supplemental brief, defendant raises the following additional issues, which we have renumbered as follows:

POINT IV - THE INDUCEMENT BY JUDGE DURING PLEA COLLOQUY BY KNOWINGLY AND WILLING[LY] AND UNDERSTANDINGLY PROVIDING APPELLANT WITH MISINFORMATION ON THE SENTENCE HE WOULD RECEIVE IF HE WENT THROUGH WITH THE PLEA IS A PER SE VIOLATION OF THE APPELLANT'S RIGHTS PROTECTED BY U.S. CONSTITUTION AMENDS. FIVE, EIGHT AND FOURTEEN AND NEW JERSEY CON STITUTION MANDATING AUTOMATIC REVERSAL OF CONVICTION.

(A) Inducement by the judge.

POINT V - APPELLANT HAS A PROTECTED LIBERTY INTEREST GUARANTEED BY THE U.S. CONST. AMENDS. FIVE AND FOURTEEN TO FULFILLMENT OF THE (ONE) TIME SET SENTENCE AND CREDIT ON (ALL) CHARGES WHILE SERVING THE SENTENCE AT AVENEL TREATMENT CENTER WHICH BOTH JUDGE AND COUNSEL TOLD APPELLANT HE WILL RECEIVE IF HE WENT THROUGH WITH THE PLEA AND WAS FOUND TO BE A COMPULSIVE/REPETITIVE SEXUAL OFFENDER DURING PRESENTENCE TESTING AT AVENUE.

(B) The broken bargain.

POINT VI - APPELLANT RECEIVED PER SE INEF FECTIVE ASSISTANCE OF COUNSEL DURING PLEA HEARING AND SENTENCING STAGE WHICH DEPRIVED HIM OF HIS RIGHTS GUARANTEED BY U.S. CONST. AMENDS. FIVE, SIX, EIGHT AND FOURTEEN, AND NEW JERSEY CONST.

After carefully reviewing the record in light of the writ ten arguments advanced by the parties, we conclude that the above arguments advanced by defendant "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge in her oral opinion delivered on May 1, 2008. Defendant's untimely petition is clearly barred by Rule 3:22-12. We also note that the claims presented are barred by Rule 3:22-5 as identical or substantially equivalent to claims previously raised in defendant's plethora of PCR petitions, Rule 3:22-5 and State v. Harris, 181 N.J. 391, 494 (2004), cert. denied, 545 U.S. 1145; 125 S. Ct. 2973; 162 L. Ed. 2d 898 (2005); or they could have been raised in them, Rule 3:22-4 and State v. Murray, 315 N.J. Super. 535, 539-40 (App. Div. 1998), aff'd and remanded, 162 N.J. 240 (2000).

 
Affirmed.

(continued)

(continued)

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A-5117-07T4

December 16, 2009