STATE OF NEW JERSEY v. WILFRED ROBINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6156-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILFRED ROBINSON,

Defendant-Appellant.

November 29. 2011

Submitted October 24, 2011 - Decided

Before Judges Alvarez and Skillman.

On appeal from the Superior Court of New Jersey,Law Division, Essex County, IndictmentNo. 98-03-1339.

Wilfred Robinson, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Wilfred Robinson appeals the June 25, 2009 denial of his second petition for post-conviction relief (PCR). He has represented himself throughout the application. We affirm.

On October 22, 1999, defendant was sentenced in accordance with a non-negotiated plea on seven indictments and one accusation charging him with several armed robberies, N.J.S.A. 2C:15-1, and multiple related offenses. The lengthiest term of imprisonment was twenty-five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), on the charge of carjacking, count one of Indictment No. 98-03-1339, N.J.S.A. 2C:15-2. All other sentences were imposed on a concurrent basis.

Defendant's direct appeal was heard on the excessive sentence calendar. R. 2:9-11. Defendant took the position at oral argument that his sentence was unjustly disparate to that of a codefendant on some of the indictments. Nonetheless, defendant's sentence was affirmed June 14, 2000. State v. Robinson, No. A-2267-99 (App. Div. June 14, 2000). The Supreme Court denied certification on January 24, 2001. State v. Robinson, 167 N.J. 89 (2001).

Thereafter, defendant filed his first petition for PCR, which was denied. Defendant appealed and we affirmed the order of the PCR court. See State v. Robinson, No. A-1828-03 (App. Div. Apr. 13, 2006). Certification was denied by the Supreme Court on June 23, 2006. State v. Robinson, 187 N.J. 492 (2006).

On November 28, 2007, defendant's petition in federal court for a writ of habeas corpus was dismissed, and his application for a certificate of appealability was denied. This second PCR application followed on September 24, 2008.

Although he granted no other relief, the PCR judge vacated the conviction on count two of Indictment No. 98-03-1339, a charge of first-degree robbery, because he agreed with defendant that no factual basis had been developed for a plea to that offense in 1999. Once that relief was granted, defendant argued he was entitled to a reduction on his carjacking sentence or was otherwise entitled to a sentence reduction. He also argued that since the conviction was vacated, all of his guilty pleas should be withdrawn, and the entire sentence voided. As defendant explained, he filed for PCR expecting a reduction in sentence.

On appeal, defendant raises the following points:

POINT 1

TRIAL COURT UTILIZE[D] A FIRST DEGREE ARMED ROBBERY BY IMPOS[ING] AN ILLEGAL SENTENCE.

POINT 2

COUNSEL WAS INEFFECT[IVE] HARMFUL AND RECKLESS TO DEFENDANT['S] PLEA AGREEMENT FOR ALLOWING HIS CLIENT TO BE SENTENCE[D] TO A FIRST DEGREE ARMED ROBBERY. COUNSEL HAD FULL KNOWLEDGE THAT HIS CLIENT NEVER ENTER[ED] A GUILTY PLEA ON INDICTMENT NO. 1339-3-98, FOR A FIRST DEGREE ARMED ROBBERY.

POINT 3

TRIAL COURT IMPOSED A 10 YEAR DISPARITY ISSUE BETWEEN DEFENDANT AND HIS ALLEGE[D] CODEFENDANT. DEFENDANT['S] CODEFENDANT RECEIVED A SENTENCE OF 15 YEARS WITH 85% FOR THE SAME CRIME AND CHARGES.

POINT 4

BY MOTION FILED BACK TO THE TRIAL COURT SEE ARGUMENT [SIC] THE MOTION WAS [HEARD] ON JUNE 22, 2009, TRIAL JUDGE AGREED WITH THE DEFENDANT AND REMOVED THE FIRST DEGREE ARMED ROBBERY TO INDICTMENT NO. 1339-3-98, AFTER UTILIZING THE FIRST DEGREE ARMED ROBBERY TO ENHANCE APPELL[ANT'S] SENTENCE. APPELL[ANT] REQUEST[ED] THE TRIAL JUDGE TO REDUCE HIS SENTENCE FROM 25 YEARS WITH 85% TO 20 YEARS WITH 85%. TRIAL COURT DENIED.

POINT 5

THE RECOURSE OF THE RULING BY THE TRIAL JUDGE WAS ANOTHER ERROR.

TRIAL COURT VIOLATED APPELL[ANT'S] FOURTEENTH AMENDMENT RIGHTS. TRIAL COURT VIOLATED APPELL[ANT'S] SIX[TH] AMENDMENT RIGHTS.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Even if they had merit, which they do not, they are procedurally barred by court rule.

Defendant's arguments related to the length of his sentence are barred by Rule 3:22-5, as the issues have been previously addressed both in the direct appeal as well as the first PCR application. Defendant in any event is foreclosed from now raising any new sentence issues which were not raised previously, as he had ample opportunity in which to do so. See R. 3:22-4.

Moreover, Rule 3:22-12(a) provides that PCR claims must be asserted within five years after sentence.1 Exceptions are made if and only if the delay was attributable to some "excusable neglect." No such neglect can be alleged since it is apparent from the procedural history that defendant has vigorously pursued all available remedies in the intervening years since 1999. The five-year time bar is dispositive of his contentions of error, as he does not assert excusable neglect and there are no extraordinary circumstances present in the record which warrant enlargement of the time frame. See State v. Milne, 178 N.J. 486, 492 (2004).

We note, in the interests of judicial administration, that defendant mistakenly believes that a twenty-five-year sentence for carjacking is an illegal sentence. It is not. N.J.S.A. 2C:15-2(b) provides that a person convicted of carjacking, a first-degree crime, may be sentenced to an ordinary term of imprisonment between ten and thirty years. Thus the sentencing judge's decision to impose a twenty-five-year term of imprisonment was within the lawful range for the offense. Nothing about the court's decision to vacate the corresponding robbery count in any way affected the viability of the carjacking plea and sentence. Accordingly, even if not time barred, the argument would not constitute a basis for any relief.

1 In February 2010, the rule was amended, deleting the language allowing filing of a petition to correct an illegal sentence at any time, in light of Rule 3:21-10(b), adopted in September 2009. Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:22-12(a) (2011).