STATE OF NEW JERSEY v. CRAIG BLACKMON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2323-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CRAIG BLACKMON,

Defendant-Appellant.

__________________________________

November 15, 2011

Argued October 3, 2011 - Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 85-11-1193.

Lilia Londar argued the cause for appellant (William H. Buckman, attorney; Ms. Londar, on the brief).

Dorothy Hersh, Assistant Prosecutor, argued the cause for respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Craig Blackmon, on the pro se brief; Ms. Hersh, of counsel and on the reply brief).

PER CURIAM

Defendant Craig Blackmon appeals from a July 27, 2009 order of the Law Division denying his fourth petition for post-conviction relief (PCR). We affirm.

Following a jury trial in 1988, defendant was found guilty of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1); felony murder, N.J.S.A. 2C:11-3(a)(3); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) and -2(a)(6); and third-degree possession of a weapon with the purpose of using it unlawfully, N.J.S.A. 2C:39-4(d).

The underlying facts of these crimes were summarized in our August 25, 1992 opinion on direct appeal. In brief, defendant had brutally raped his cousin and stabbed her to death. As we described the crimes in that opinion:

The victim was defendant's twenty-two-year-old cousin. On May 18, 1985, at about 9:00 p.m., her body was discovered by her sisters on the kitchen floor of the family home. Her two-year-old son, who was smeared with blood, was found on the second floor of the house. There was blood all over the kitchen. Her dress was pushed up around her waist. Her wrists were tied together. There were numerous stab wounds on her hands, throat, leg and in her genital area. She also had numerous head injuries including a fractured jaw where her head had been kicked in. Her assailant had urinated on her. The causes of death were manual strangulation and extensive external hemorrhaging.

[State v. Blackmon, No. A-5648-87 (App. Div. Aug. 25, 1992) (slip op. at 2-3).]

At sentencing on June 18, 1988, the trial judge merged the felony murder count into the purposeful or knowing murder count. He also merged the conviction for possession of a weapon for an unlawful purpose into the aggravated sexual assault, and then merged both aggravated sexual assault convictions. For the murder, he sentenced defendant to life imprisonment, thirty years without parole; and for the merged aggravated sexual assault conviction, he sentenced defendant to a consecutive twenty-year prison term, ten years without parole.

On direct appeal, we affirmed defendant's murder conviction, determined that the aggravated assault convictions should have merged with his murder conviction, vacated the aggravated sexual assault as merged with the murder conviction, unmerged the weapons conviction from the aggravated sexual assault conviction, and remanded it to the trial judge for any action it deemed appropriate, including resentencing on that conviction. Blackmon, supra, slip op. at 10. The Supreme Court denied certification. State v. Blackmon, 130 N.J. 599 (1992).

On remand for resentencing on September 11, 1992, the trial court imposed a consecutive five-year term of imprisonment subject to two-and-one-half years of parole ineligibility on defendant's weapon conviction. Thereafter defendant appealed the sentence, which was heard on our Excessive Sentence Oral Argument (ESOA) calendar on October 19, 1993 and affirmed.

Defendant filed his first PCR petition four years later, on March 21, 1997. On February 23, 1999, the PCR judge entered an order denying the petition, except as to defendant's claim that there should have been merger of the weapon offense with the murder and sexual assault conviction. The issue, along with others, was heard on June 7, 1999.1 On June 8, 1999, the court denied the petition for PCR except for the issue of merger, which it granted.

Defendant appealed the order denying PCR and the State cross-appealed the merger of the weapon offense, contending that the sentence imposed on our general remand should be reinstated. In an unpublished opinion, we affirmed the denial of the PCR petition and reversed, on the State's cross-appeal, the order merging defendant's conviction for unlawful possession of a weapon into his merged conviction of first-degree murder and first-degree aggravated sexual assault. State v. Blackmon, No. A-6400-98 (App. Div. June 13, 2001). Accordingly, we entered an order unmerging the weapons offense and remanded to the trial court for entry of a modified judgment of conviction. Ibid. We reasoned:

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 [Rule] 3:22-12, [Rule] 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 [Rule] 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 12-13 (emphasis added).]

On remand, defendant's judgment of conviction with the weapons conviction unmerged was reinstated. The Supreme Court denied certification. State v. Blackmon, 170 N.J. 89 (2001).

Defendant then filed a second PCR petition, raising again the merger issue. The Law Division denied the application on January 26, 2005, finding the merger issue both substantively without merit and procedurally barred. The judge concluded:

With respect to the merger issue stated in your brief, this issue has been adjudicated. The Appellate Division ordered the Possession of a Weapon for an Unlawful Purpose charge to be "unmerged" in its opinion issued on June 21, 200[1].

As the Appellate Division found in denying both your direct appeal and the appeal of your first PCR petition, this court finds that your arguments are without merit, have been previously adjudicated and are time barred. Pursuant to Rule 3:22-12 and Rule 3:22-5, your second PCR is denied. Denying your petition would not result in fundamental injustice nor is denial contrary to the Constitution of the United States or the State of New Jersey as any error committed at trial was harmless. Therefore, this court denies your petition.

We affirmed the order denying defendant's second PCR petition, finding "defendant's contentions to be without merit." State v. Blackmon, No. A-3306-04 (July 12, 2006) (slip op. at 15). The Supreme Court denied certification. State v. Blackmon, 189 N.J. 429 (2007).

Defendant filed a third PCR petition, once again arguing that his sentence was illegal. On March 11, 2008, the PCR judge denied relief, concluding that defendant's arguments "are without merit and have been previously adjudicated." The judge explained:

Your claim for [sic] illegal sentence was adjudicated during your first petition for post-conviction relief, which was filed on March 21, 1997, and subsequently by the Appellate Division on June 21, 2002. Further, the Appellate Division on July 12, 2006, thoroughly reviewed the lengthy record, the arguments advanced by the Defendant, the applicable legal principle, and Judge Mathesius' written opinion of January 25, 2005, when it found that Defendant's contentions were without merit.

We affirmed the Law Division's order denying defendant's third PCR petition. State v. Blackmon, No. A-3823-07 (App. Div. June 15, 2009). We reasoned:

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.

. . . .

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.

[Blackmon, supra, slip op. at 3, 5-6.]

Thereafter, defendant filed his fourth PCR petition, which is the subject matter of the instant appeal. The PCR judge denied the application on both substantive and procedural grounds.

On appeal, defendant pro se raises the following issues:

THE NEW JERSEY SUPERIOR COURT IS IN DIRECT CONTRAVENTION OF UNITED STATES SUPREME COURT PRECEDENT WHERE RES JUDICA [SIC] WAS RELIED ON TO FORECLOSE CORRECTION OF THE DEFENDANT'S ILLEGAL SENTENCE.

A. Pursuant to United State Supreme Court

Precedent, Res Judica [sic] [i.e.] Rule 3:22-5, Cannot Foreclose Correction Of An Illegal Sentence.

B. Pursuant To United States Supreme Court

Precedent And State Law, Rule 3:22-4 Also Does Not Foreclose Correction Of An Illegal Sentence.

C. The New Jersey Superior Court, Appellate Division['s], Failure To Determine Whether The Correct Sentencing Guidelines Were Followed On Defendant's Resentence, Pursuant To State v. Roth, 95 N.J. 334[] (1984), Resulted In A Denial Of Due Process And Right To Fair Trial.

D. Pursuant To The Law Governing Merger Of Offenses, The Defendant's Sentence Is Illegal.

In a reply brief, defendant, through counsel, argues:

I. MERGER OF OFFENSES IS REQUIRED.

II. THE COURT'S APPLICATION OF POST-CONVICTION RELIEF PROCEDURAL BARS TO CORRECTION OF AN ILLEGAL SENTENCE WAS INAPPROPRIATE.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, we have twice unmerged defendant's weapons conviction, the first time being on his initial direct appeal back in 1992 and after remand in 1993, we affirmed imposition of the consecutive five-year term on that unmerged offense on defendant's second direct appeal. Since then, both this court and the PCR court have repeatedly rejected defendant's claims of illegality of sentence on both substantive and procedural grounds. Most tellingly, on appeal of the denial of defendant's first PCR petition, we specifically authorized the trial court "to resentence on the weapon offense as a separate offense," Blackmon, supra, A-6400-98, slip op. at 13, and therefore we reiterate what we said then that "we cannot now conclude that such a sentence was illegal." Ibid. See State v. Hale, 127 N.J. Super. 407, 410 (App. Div. 1974); see also State v. Reldan, 100 N.J. 187, 203 (1985); United State v. Maybusher, 735 F.2d 366, 370 (9th Cir. 1984), cert. denied, 469 U.S. 1110, 105 S. Ct. 790, 83 L. Ed. 2d 783 (1985).

1 PCR counsel added four additional claims, including reasserting the ineffective assistance of trial counsel claim based upon a violation of the attorney-client privilege. On May 2, 1999, petitioner filed a pro se motion to amend the petition regarding the attorney-client privilege claim.