STATE OF NEW JERSEY v. JAMES BOYKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5428-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BOYKINS,

Defendant-Appellant.

__________________________

December 19, 2013

Submitted July 2, 2013 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No. 90-04-0519.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip V. Lago, Designated Counsel, on the brief).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, James Boykins, appeals the denial of his third post-conviction relief (PCR) petition, in which he sought to set aside the discretionary extended sentence imposed by the court relating to his 1993 conviction of certain offenses he committed in February 1990. For the reasons that follow, we affirm the PCR court's decision in part and remand it in part to consider the sentencing impact, if any, of the Supreme Court's recent opinion in State v. Hudson, 209 N.J. 513 (2012).

The sentence arose out of defendant's kidnapping and sexual contact with W.B., committed on February 26, 1990, two days before defendant was tried on Ocean County Indictment Number 153-2-89 (Ocean County Indictment I), for charges of kidnapping and other sexual offenses committed in June 1988. He was convicted of all charges in March 1990 and sentenced on Ocean County Indictment I on September 10, 1990. The court granted the State's motion to impose a discretionary extended term of life imprisonment on the kidnapping charge with a twenty-five-year period of parole ineligibility, in addition to a concurrent twenty-year sentence on the aggravated sexual assault conviction.

A grand jury indicted defendant for the instant February 26, 1990 offenses, under Ocean County Indictment Number 519-4-90 on April 4, 1990 (Ocean County Indictment II), charging him with kidnapping, terroristic threats, and sexual offenses. The trial on those charges commenced in early 1993 and on March 5, 1993, a jury found defendant guilty of kidnapping, sexual contact, and criminal sexual contact. At sentencing on March 31, 1993, the trial court granted the State's motion to impose an extended term on the kidnapping charge of life imprisonment, with a twenty-five-year period of parole ineligibility, to be served consecutive to the sentence he was serving on the Ocean County Indictment I.1

On direct appeal, we affirmed defendant's convictions and the sentences imposed on Ocean County Indictment II, without prejudice to defendant filing an "application for gap time credit." State v. Boykins, No. A-5147-93 (App. Div. Nov. 15, 1996) (slip op. at 4). On March 19, 1996, defendant filed his first PCR petition alleging ineffective assistance of trial counsel in connection with Ocean County Indictment II. Defendant claimed his trial counsel failed to do anything to subpoena out-of-state witnesses from New York, whom he contended would have provided testimony that would have refuted the State's charge that he had kidnapped the victim and committed sexual offenses against her. According to defendant, the witnesses were unavailable to appear on the scheduled trial date and had requested a subpoena or other documentation from an attorney to give to their employers, but trial counsel failed to provide anything. The trial court denied the petition and, in an unpublished opinion, we affirmed. State v. Boykins, No. A-4872-97 (App. Div. Nov. 10, 1999).

3 On December 18, 2003, defendant filed his second PCR petition.2 The PCR judge denied this petition as procedurally barred pursuant to Rule3:22-5, because defendant's claim of ineffective assistance of counsel had previously been adjudicated in defendant's first PCR petition. On direct appeal, we affirmed. State v. Boykins, No. A-3727-03 (App. Div. Feb. 6, 2006).

3 On May 16, 2011, defendant, pro se, filed his third PCR petition. Although captioned as a petition for post-conviction relief, the gravamen of the petition was to correct an illegal sentence based upon defendant's reliance upon State v. Pennington, 418 N.J. Super.548 (App. Div. 2011), certif. denied, 209 N.J.595 (2012), decided two months before he filed his petition. The court conducted oral argument on the petition on February 1, 2012 and denied the petition. The court reasoned that the petition, irrespective of its merits, was procedurally barred. The court indicated that it did not have all of the briefs filed on behalf of defendant in connection with his direct appeal and first two PCR petitions, but based upon the submissions submitted on behalf of defendant in the pending PCR petition, was aware that "there were some issues raised with regard to the excessiveness and . . . legality of the sentence" based upon what had been read in the submissions in connection with the pending PCR. Consequently, the court expressed the opinion that the issue of the legality of defendant's sentence "ha[d] been addressed or, certainly could have been addressed by way of direct appeal if it wasn't addressed."

Despite the court's conclusion that the matter was procedurally barred, the court considered the merits of defendant's argument and agreed with the State that Penningtonwas factually distinguishable, defendant presented no issue of constitutional magnitude, and defendant's claims did not call for retroactive relief. The present appeal followed.

On appeal defendant raises the following points:

POINT I

THE EXTENDED TERM SENTENCE IS ILLEGAL SINCE IT WAS IMPOSED FOR OFFENSES WHICH PRECEDED AN EARLIER SENTENCING WHEREIN AN EXTENDED TERM WAS IMPOSED.

POINT II

THE CONSECUTIVE EXTENDED TERM SENTENCE IS ILLEGAL AND UNJUSTLY HARSH.

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-4.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R.3:22-5.

POINT V

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR OF R.3:22-12 SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.

POINT VI

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Although, for post-conviction relief purposes, we agree that defendant's petition was procedurally barred because of its untimeliness, seeRule3:22-5, defendant's claims are essentially a contention that the sentence is illegal. Pursuant to Rule3:22-12 a motion to correct an illegal sentence may be filed at any time. Therefore, we must turn to the merits of defendant's claim.

N.J.S.A.2C:44-5(b) addresses "[s]entences of imprisonment imposed at different times" and states that "[w]hen a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence . . . [t]he multiple sentences imposed shall so far as possible conform to subsection a of this section." The essence of defendant's argument is that because he was serving a sentence on Ocean County Indictment I at the time he was subsequently sentenced on Ocean County Indictment II and because Ocean County Indictment II arose out of conduct committed before the sentence imposed on Ocean County Indictment I, the trial court erred in imposing a discretionary extended term.

In State v. Pennington, supra, a pre-Hudsoncase upon which defendant relied in advancing his PCR petition, the defendant claimed his sentence to an extended term on a first-degree robbery conviction was illegal because, at the time of his sentencing, he was "already serving an extended term for an offense committed after the robbery for which he was being sentenced." 418 N.J. Super.at 554. We agreed, stating that "[b]y its terms, N.J.S.A.2C:44 5(b)(1) only applies when the sentencing offense occurred prior to the offense for which the existing extended term is being served." Id.at 555.

Here, the sentencing offense in Indictment II occurred in February 1990 after the June 1988 offense, as to which an extended term was imposed in September 1990. Defendant was serving two discretionary extended sentences for offenses he committed prior to committing the 1990 offenses. Consequently, under the principles exposed in Pennington, it would appear that the court's imposition of a third extended term sentence in March 1993 was not improper.

Nevertheless, defendant argues for the first time on appeal that his third extended term is illegal under the Supreme Court's decision in Hudson, supra, which was decided on February 6, 2012, five days after the PCR judge denied defendant's petition.

In Hudson, although the defendant was indicted for attacks on two victims in one indictment, the court granted his severance motion. Id.at 518. Later, in separate trials, the defendant was found guilty of charges related to both victims, which had been committed within a day of each other. Id.at 518-20. The defendant was convicted in June 2007 for the offenses he committed against victim G.R. on February 7, 2006, and sentenced to an extended term in August 2007. Thereafter, the defendant was convicted in January 2009, for offenses he committed against the other victim, G.B., on February 8, 2006.

At sentencing in Hudson, the State moved for imposition of a discretionary extended sentence. The defendant objected, arguing that imposition of an extended term was improper under State v. Papasavvas, 163 N.J.565, 627, corrected by 164 N.J.553 (2000). The trial court in Hudsonrejected this argument, concluding that the circumstances were distinguishable from the facts in Papasavvas. Id.at 521. The court explained, "this is a second sentencing hearing and [the defendant is] being sentenced for different crimes committed on different dates against different victims." Ibid.(internal quotation marks omitted).

On direct appeal in Hudson, we affirmed the defendant's conviction and sentence. Id.at 522. We found no merit to the argument that his sentence was manifestly illegal and noted that the defendant "sought severance and subjected himself to two separate trials and two separate sentencing proceedings" and could not now be heard to complain about the consequences of his successful application. Ibid.

The Supreme Court granted certification and reversed the sentence, concluding that by adhering to the plain meaning of N.J.S.A.2C:44-5(b)(1), "it was legal error to have imposed a second extended-term on [the] defendant." Hudson, supra, 209 N.J.at 537. The Court placed particular focus upon "[t]he timing and sequences of [the defendant's] sentencing" to conclude that those factors brought the defendant "squarely under N.J.S.A.2C:44-5(b)(1)'s application." Ibid. The Court did not hold that a defendant could only be subjected to one extended-term sentence, concluding that N.J.S.A.2C:44-5(b)(1) "does not purport to apply as a perpetual ineligibility for any subsequent extended term once one is imposed." Id.at 531. The Court stated that "[s]ubsection b speaks clearly, and directly, in terms of the date of the latter offense and the time of imposition of the prior sentence that [a] defendant is serving." Id.at 532. However, the Hudsonmajority opinion does state that "[t]he prohibition [in N.J.S.A.2C:44-5(b)(1)] against multiple extended-term sentences applies, as far as it is possible to do so, when sentencing a defendant who is already serving a sentence and who is about to be sentenced for an offense that predated imposition of that sentence." Id.at 538. Defendant argues that this limiting principle should apply to his own case because his February 1990 offenses occurred before he was sentenced in September 1990 on the offenses in Indictment I. The State, on the other hand, disputes this interpretation of Hudsonand also argues that the opinion should not apply retroactively.

Rather than addressing the potential impact of Hudsonfor the first time in this appeal, we remand the issue to the PCR court, which can evaluate not only the question of retroactivity but also assess whether Hudson, even if it applies retroactively,3affects the substance of its analysis.

Defendant's separate argument that the consecutive sentences imposed are excessive was previously adjudicated on the merits on direct appeal and is therefore procedurally barred. R.3:22-5 and -12. We therefore affirm that particular aspect of the PCR court's denial of relief.

Affirmed in part, remanded in part. We do not retain jurisdiction.

1 The court imposed sentences on the other charges for which defendant was convicted, but those sentences are not pertinent to this appeal.

2 The second PCR petition is not included in the appendix. According to defense counsel, a copy of that petition could not be obtained.

3 Our research has not disclosed a published opinion resolving whether Hudson applies retroactively to cases, such as this one, which were in the litigation "pipeline" as of February 6, 2012.