STATE OF NEW JERSEY v. WALTER BROWN

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0142-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

WALTER BROWN,

        Defendant-Appellant.

              Submitted May 31, 2018 – Decided June 12, 2018

              Before Judges Alvarez and Nugent.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment Nos.
              92-05-0556, 92-07-0769 and 93-11-1285.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Monique Moyse, Designated
              Counsel, on the brief).

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney for respondent (Juda Babuschak
              Opacki, Assistant Prosecutor, on the brief).

PER CURIAM

        Defendant, Walter Brown, appeals from the April 21, 2016

Criminal Part order that denied, without an evidentiary hearing,

his petition for post-conviction relief (PCR).                 In his petition,
he   challenged   his   sentences   on   three   first-degree   robbery

convictions.   He raises two arguments on appeal:

          POINT ONE

          MR. BROWN IS ENTITLED TO AN EVIDENTIARY
          HEARING ON HIS CLAIM THAT HIS ATTORNEY
          RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR
          FAILING TO ARGUE ADEQUATELY FOR MITIGATING
          FACTORS AT SENTENCING.

          POINT TWO

          THE PCR COURT ERRONEOUSLY RULED THAT MR.
          BROWN'S PETITION WAS TIME BARRED BECAUSE ANY
          DELAY IN FILING THE PETITION WAS DUE TO
          EXCUSABLE NEGLECT AND THERE IS A REASONABLE
          PROBABILITY THAT IF THE DEFENDANT'S FACTUAL
          ASSERTIONS WERE FOUND TO BE TRUE, ENFORCEMENT
          OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL
          INJUSTICE.

Having considered defendant's arguments in light of the record and

controlling law, we affirm.

     This case involves three Mercer County indictments:        Nos. 92-

05-0556, 92-07-0769, and 93-11-1285.         Each indictment charged

defendant with first-degree robbery and other offenses.              Each

indictment was tried to a jury and each jury convicted defendant

of first-degree robbery and other offenses.      In each instance, the

sentencing judge merged the remaining offenses into the first-

degree robbery count and sentenced defendant on that crime.

     On Indictment No. 92-05-0556, the court sentenced defendant

on February 25, 1994, to an extended custodial term of fifty years


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with twenty-five years of parole ineligibility.   The court ordered

defendant to serve the sentence concurrent to a sentence he was

serving in Pennsylvania, but consecutive to any sentence imposed

for any New Jersey parole violation.

     The Appellate Division affirmed defendant's conviction and

sentence on Indictment No. 92-05-0556.    State v. Brown, No. A-

4516-93 (App. Div. May 15, 1995).      In that appeal, defendant

argued: "THE COURT'S SENTENCING ANALYSIS FAILED TO TAKE INTO

ACCOUNT A SIGNIFICANT MITIGATING FACTOR."   Id. (slip op. at 2).

In rejecting the argument, the court explained:

               Defendant next maintains that the matter
          should be remanded for resentencing because
          the trial judge failed to consider defendant's
          cooperation with authorities as a mitigating
          factor. The record creates substantial doubt
          as to defendant's motivation in giving his
          statements. However, be that as it may, the
          application of a mitigating factor in a
          sentencing decision is a matter of discretion.
          Cannel, New Jersey Criminal Code Annotated,
          comment 5 on 
N.J.S.A. 2C:44-1.     We find no
          reason to conclude that the trial judge abused
          his discretion in failing to consider the
          factor.   This was defendant's second Graves
          Act offense.    The presumptive term for an
          extended Graves Act sentence is 50 years.
          
N.J.S.A. 2C:44-1(f)(1).    The application of
          that one mitigating factor would not have been
          enough to conclude that the mitigating factor
          substantially   outweighed   the   aggravating
          factors in this instance.

          [Id. (slip op. at 4).]



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     On Indictment No. 92-07-0769, the court sentenced defendant

on April 8, 1994, on the first-degree robbery count, to life

imprisonment with a parole ineligibility period of twenty-five

years.     The    court   ordered   defendant        to   serve   the   sentence

concurrent to a sentence he was serving in Pennsylvania and

concurrent to the sentence imposed on Indictment No. 92-05-0556

but consecutive to any sentence imposed for any New Jersey parole

violation.

     The Appellate Division affirmed defendant's conviction and

sentence on Indictment No. 92-07-0769.               State v. Brown, No. A-

5365-93 (App. Div. Dec. 26, 1995).                 In his appeal, defendant

argued, "THE SENTENCE IMPOSED WAS EXCESSIVE AS THE TRIAL COURT

FAILED TO APPLY THE SENTENCING GUIDELINES."               Id. (slip op. at 3).

In rejecting the argument, the court noted defendant had not

disputed   he    was   eligible   for       an   extended    term,    but    rather

complained the lengthy term was unjustified.                Id. (slip op. at 6).

The court determined "the trial judge applied the appropriate

legislative      guidelines,   weighed       the   appropriate       evidence      in

determining aggravating and mitigating factors, and imposed a

sentence that does not shock the judicial conscience in light of

defendant's extensive prior criminal history."                Ibid.

     On Indictment No. 93-11-1285, on the first-degree robbery

count, the court sentenced defendant on May 27, 1994, to life

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imprisonment with a minimum parole ineligibility period of twenty-

five years.         The court imposed the sentence concurrent to a

sentence defendant was serving in Pennsylvania at the time and

concurrent     to    the    two        other   Mercer   County   indictments       but

consecutive to any sentence imposed for any New Jersey parole

violation.

      The Appellate Division affirmed defendant's conviction and

sentence on Indictment No. 93-11-1285.                  State v. Brown, A-0117-94

(App. Div. Mar. 11, 1996).               Defendant argued, among other things,

"THE EXTENDED TERM OF LIFE IMPRISONMENT WITH A TWENTY-FIVE YEAR

TERM OF PAROLE INELIGIBILITY IN THIS CASE IS A MANIFESTLY EXCESSIVE

SENTENCE."          In    rejecting         defendant's     argument,   the     court

characterized the sentence as "unexceptional."                   Id. (slip op. at

3).   The court explained defendant was subject to a mandatory

Graves   Act   sentence          and    a   discretionary    persistent   offender

extended term.           Ibid.     Based on its review of the record, the

court found the trial judge followed the appropriate sentencing

guidelines.    Ibid.       The court also determined substantial evidence

in the record supported the trial court's findings concerning

aggravating and mitigating factors.                Ibid.   Accordingly, the court

concluded the sentencing judge did not abuse his discretion in

arriving at the prison term imposed.                Id. (slip op. at 3-4).



                                               5                              A-0142-16T4
      Defendant filed his PCR petition on December 1, 2014, more

than twenty years after entry of the last of the judgments of

conviction    on   the   three   Mercer   County   indictments.   In   his

petition, under the directive to state with specificity the facts

upon which defendant claimed relief, he responded: "Sentences, and

any other relief that may come about."        In a supplemental verified

petition, he argued his constitutional rights were violated and

he received an illegal sentence.

      In his PCR brief, defendant argued his counsel was ineffective

for failing to argue a mitigating factor at sentencing on the

first of the two Mercer County indictments.         Defendant claimed the

trial court should have taken into consideration that he had

compensated one victim for the injury the victim sustained and was

willing to make restitution to another victim.          As to the last of

the   three    indictments,      defendant   argued    his   counsel   was

ineffective for failing to point out the mitigating factor that

his conduct was the result of circumstances unlikely to recur.

Defendant reasoned that the lengthy prison term he was serving

made it unlikely he would reoffend.

      Defendant also argued his petition should not be time-barred

because the State would not be prejudiced as defendant was only

seeking to have his sentence amended.



                                     6                            A-0142-16T4
     In a thorough written opinion, Judge Pedro J. Jimenez, Jr.,

denied defendant's PCR petition without an evidentiary hearing.

The judge determined the petition was time-barred by Rule 3:22-

12(a)(1) and that defendant had failed to allege any reason to

justify the delay in filing the petition.       Instead, defendant

relied on the fact that the delay would not cause the State any

prejudice.

     We affirm, substantially for the reasons expressed by Judge

Jiminez in his written opinion.   Defendant's arguments are without

sufficient merit to warrant further discussion.   R. 2:11-3(e)(2).

     Affirmed.




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