STATE OF NEW JERSEY v. JOHN DELBRIDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN DELBRIDGE,

Defendant-Appellant.

_______________________________

June 25, 2014

Submitted: June 17, 2014 Decided:

Before Judges Ashrafi and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-04-0962.

John Delbridge, appellant pro se.

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Thomas N. Zuppa, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John Delbridge appeals from the October 15, 2012 Law Division order denying his second petition for post-conviction relief (PCR). We affirm.

On June 30, 1994, a jury convicted defendant of first-degree felony murder, N.J.S.A. 2C:11-3a(3), and first-degree armed robbery, N.J.S.A. 2C:15-1. At sentencing on August 4, 1994, the judge merged the armed robbery conviction into the felony murder conviction and sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility. Defendant appealed his conviction and sentence, and we affirmed in an unpublished opinion. State v. Delbridge, No. A-0712-94 (App. Div. December 23, 1996) (slip op. at 22) (Delbridge I). In our decision, we specifically considered, and rejected, defendant's argument that the trial judge's "decision to impose a sentence of life imprisonment could not reasonably have been made upon a proper weighing of aggravating and mitigating factors" and we found the sentence "appropriate." Id. at 2, 21-22. Our Supreme Court denied certification. State v. Delbridge, 149 N.J. 142 (1997).

Defendant filed his first petition for PCR on April 13, 1999. Among other things, defendant argued that "[t]he sentence imposed upon [him] was a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution and requires resentencing." On February 21, 2001, the judge denied defendant's petition, including his claim that his sentence was illegal, in a thorough written decision. We affirmed the judge's order. State v. Delbridge, No. A-3978-00 (App. Div. January 9, 2003) (Delbridge II), certif. denied, 176 N.J. 72 (2003).

Defendant filed a second pro se petition for PCR on September 17, 2012. He again argued that his sentence was illegal. On October 15, 2012, the judge denied the petition and, in a written statement of reasons, explained that defendant had previously, and unsuccessfully, raised similar contentions about his sentence to the trial court, the Appellate Division, and the Supreme Court. The judge also found that defendant's petition had been filed eighteen years after sentencing.

Despite these procedural bars, the judge concluded that defendant's claim that his sentence was illegal lacked merit. The judge observed that, pursuant to N.J.S.A. 2C:11-3b(1), the sentencing judge was required to impose a minimum mandatory sentence of thirty years without parole eligibility. The judge also found, as we had on direct appeal of the sentence, that the sentencing judge made detailed findings of fact concerning the applicable aggravating and mitigating factors that fully justified the imposition of the life sentence defendant received. Because defendant's sentence was not illegal, the judge concluded that "any further determination as to its excessiveness is not appropriate for this type of [petition] and that remedy is no longer available to [defendant] because the time limit for direct appeal has expired."

Defendant now appeals from this decision and raises the following contentions:

POINT I

THE COURT HAS JURISDICTION TO IMPOSE A CORRECTED SENTENCE AND TAKE NOTICE OF ERRORS NOT BROUGHT TO THE ATTENTION OF THE TRIAL COURT PURSUANT TO R. 2:10- 3 AND 2:10-2, OR ALTERNATIVELY REMAND AND RETAIN JURISDICTION, FOR CONSIDERATION OF THE OMITTED ARGUMENTS PURSUANT TO R. 2:9-1(b)[]REQUIRED BY NAPUE AND BRADY.

POINT II

THE PRIOR ADJUDICATION BY THIS COURT ON THE LEGALITY OF DEFENDANT'S SENTENCE WAS UNCONSTITUTIONAL AS IT WAS PROSECUTED ON DIRECT APPEAL BY INEFFECTIVE COUNSEL, CONTRARY TO EVITTS AND MARTINEZ, WHO FAILED TO PROPERLY ARGUE WHITE, MANZIE, DARBY, ROTH AND YARBOUGH.

POINT III

DEFENDANT'S LIFE SENTENCE IS UNCONSTITUTIONAL PURSUANT TO THE RULING IN MANZIE AS EXCEEDING THE STATUTORY MAXIMUM OF BETWEEN THIRTY YEARS AND LIFE IMPRISONMENT BASED ON THE RULINGS OF THE UNITED STATES SUPREME COURT IN UNITED STATES V. BASS AND REVIS V. UNITED STATES.

POINT IV

THE SENTENCING COURT FAILED TO CONSIDER THAT AS IN DARBY, FELONY MURDER DOES NOT HAVE AN ELEMENT OF INTENTIONAL KILLING, RENDERING IT UNINTENTIONAL NOT REFLECTED BY THE REASONS FOR IMPOSITION OF SENTENCE IN VIOLATION OF UNITED STATES EX. REL. ATTORNEY GENERAL V. DELAWARE & HUDSON CO.

POINT V

DARBY AND WHITE PERMITTED CONSIDERATION OF NOT FOR[E]SEEING SERIOUS HARM PURSUANT TO N.J.S.A. 2C:44-1b(2) WHICH THE COURT FAILED TO UTILIZE IN THIS MATTER AND WHICH WAS HELD TO BE CONSTITUTIONALLY REQUIRED BY NAPUE AND BRADY.

POINT VI

THERE WAS A DOUBLE COUNTING OF SERIOUSNESS OF THE OFFENSE AND HARM AS BOTH ARE ELEMENTS OF FELONY MURDER.

POINT VII

PURSUANT TO STATE V. RANDOLPH AND WILLIAMS V. NEW YORK, DEFENDANT IS ENTITLED TO RESENTENCING BASED ON HIS PRESENT CIRCUMSTANCES.

We begin with a review of the relevant principles governing our analysis. PCR constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). To protect courts against addressing endless issues in a piecemeal fashion, certain procedural rules govern PCR petition filings. Under the current version of the rule, which was in effect when defendant filed his present petition in September 2012, Rule 3:22-12(a)(1) imposes a five-year limitation on filing a petition after the entry of the judgment sought to be challenged. A second or subsequent PCR petition may only be filed within one year of the recognition of a new constitutional right, discovery of a new factual predicate, or denial of the last PCR to address ineffective assistance of PCR counsel. R. 3:22-12(a)(2).

Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the rules must be viewed in light of their dual key purposes: "to ensure that the passage of time does not prejudice the State's retrial of a defendant" and "to respect the need for achieving finality." State v. DiFrisco, 187 N.J. 156, 166-67 (2006). Moreover, a PCR petition is not a substitute for an appeal of a conviction, Rule 3:22-3, and any available ground for relief not asserted in a prior proceeding is barred if it could have been raised earlier, Rule 3:22-4, or was asserted earlier, Rule 3:22-5.

We have carefully considered defendant's arguments and the applicable law, and we conclude that the 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 stated by the judge in his October 15, 2012 written decision.

Defendant's second PCR petition, filed eighteen years after the judgment of conviction, is clearly time-barred. R. 3:22-12(a)(2). Defendant has not articulated any "newly recognized" constitutional right that supports his petition or a newly discovered "factual predicate" for his claims. R. 3:22-12(a)(2)(A) and (B). We also agree that the present claims are barred by Rule 3:22-4 and Rule 3:22-5 because they could have been raised, or were raised, either on direct appeal or in defendant's previous PCR petition and subsequent appeal.

Finally, an illegal sentence cognizable on PCR is one that "'exceeds the maximum penalty provided in the Code for a particular offense' or a sentence 'not imposed in accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)). Judged against this standard, the sentence imposed in this case was plainly not illegal. As we observed in our decision on defendant's direct appeal of the sentence,

[Defendant's] sentence was appropriate. The sentencing guidelines were followed. . . . Moreover, the aggravating factors found by the judge are appropriate and supported by the record. Given the seriousness of the crime and [defendant's] extensive criminal record, we cannot say that the sentencing judge imposed an unreasonable sentence in applying the aggravating factors.

[Delbridge I, supra, slip op. at 21-22 (citations omitted).]

Therefore, we discern no basis to disturb the judge's conclusion that because defendant's sentence was legal, his claim that his sentence was excessive was not a proper subject for PCR. See State v. Hess, 207 N.J. 123, 145 (2011) ("[A]n alleged excessive sentence--that is, a sentence within the range permitted by a verdict or a plea--is not cognizable on PCR[.]"); R. 3:22-2(c).

Affirmed.