STATE OF NEW JERSEY v. JAMES LEROY BAXTER

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3261-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES LEROY BAXTER,

     Defendant-Appellant.
_______________________

                   Submitted October 15, 2020 – Decided December 10, 2020

                   Before Judges Whipple and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Indictment No. 90-01-0093.

                   James Baxter, appellant pro se.

                   Angelo J. Onofri, Mercer County Prosecutor, attorney
                   for respondent (Narline Casimir, Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM

          Defendant James Baxter appeals pro se from a March 12, 2019, trial court

order denying his motions to compel discovery, for removal to federal court, to
correct an illegal sentence and assign counsel, as well as the denial of his petition

for post-conviction relief (PCR) and his amendments to his petition. We affirm

for the reasons stated by Judge Timothy Lydon in his written decision.

      Defendant was convicted by a jury in 1991 with first-degree murder,

 N.J.S.A. 2C:11-3(a)(1); felony murder,  N.J.S.A. 2C:11-3(a)(3); first-degree

robbery,  N.J.S.A. 2C:15-1 and 2C:2-6; third-degree theft by unlawful taking,

 N.J.S.A. 2C:20-3(a) and 2C:2-6; and second-degree possession of a weapon for

an unlawful purpose,  N.J.S.A. 2C:39-4(a) and 2C:2-6. He was sentenced to an

aggregate term of life imprisonment with a thirty-year term of parole

ineligibility, and an additional concurrent sentence of twenty years with ten

years of parole ineligibility. We affirmed his conviction on direct appeal, and

the Supreme Court denied certification. State v. Baxter,  134 N.J. 568 (1993).

Defendant filed a PCR petition, which was denied and affirmed on appeal, and

the Supreme Court denied certification. State v. Baxter,  161 N.J. 335 (1999).

      Defendant filed this second petition for PCR and moved for a new trial in

September 2018, asserting newly-discovered evidence. The newly-discovered

evidence was that a cooperating witness, Ronald Granville, had a pending

indictment undisclosed at the time of trial that could have been used by

defendant during cross-examination to undermine Granville's credibility. The


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court denied defendant's second PCR petition as well as other requested relief

in an omnibus order of March 12, 2019.        Defendant's appeal herein only

addresses the denial of his motion for a new trial and his motion to correct an

illegal sentence. He argues the following:

            POINT I
            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S MOTION FOR NEW TRIAL BASED
            ON NEWLY DISCOVERED EVIDENCE.

            POINT II
            THE TRIAL COURT ERRED IN DENYING
            [DEFENDANT'S] MOTION TO CORRECT AN
            ILLEGAL SENTENCE.


      In his March 2019 written decision, Judge Lydon concluded defendant's

arguments regarding Granville's undisclosed indictment are procedurally barred.

The court concluded:

            In the amendment to your PCR, you raise a new
            ineffective assistance claim. You assert that your
            attorney "failed to make reasonable efforts to learn of
            the State's key witness' criminal history.". . . . You
            assert that "had the jury been informed of the
            suppressed pending indictments, full criminal history,
            and the sentence considerations Granville would be
            receiving for his testimony resulting in bias, it is
            'reasonably probable' that the result of the proceeding
            would have been different.". . . . Your new ineffective
            assistance claim is procedurally barred. Under Rule
            3:22-4, any PCR claim "that reasonably could have
            been raised in a prior proceeding" is barred from

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                                      3
             assertion in a future proceeding. Your trial was held
             over [twenty-seven] years ago in February 1991. More
             than three years passed between your trial and the
             submission of your first PCR on August 31, 1994. You
             had an opportunity during this period of time to identify
             and substantiate any ineffective assistance claims
             against your attorney. In fact, your first PCR made
             several allegations of ineffective assistance, including
             the claim that your attorney failed to inform the court
             of a conflict of interest. You certainly could have
             raised your new ineffective assistance claims as a part
             of your first PCR. It is clear that your claim does not
             rest on a previously unknown "factual predicate." Rule
             3:22-4. Instead, you simply contend that your trial
             attorney failed to explore Granville's alleged bias.
             Because you were in a position to assert this argument
             at a prior PCR proceeding, you are not permitted [to]
             pursue it in this subsequent petition.

       The court also concluded defendant's claims regarding Granville were

barred by Rule 3:22-4 because they could have been raised on direct appeal.

The court stated defendant's arguments regarding Granville lacked substantive

merit because "[i]n order to establish a Brady1 violation the defense must

demonstrate that (1) the prosecution failed to disclose the evidence, (2) the

evidence was of a favorable character for the defense; and (3) the evidence was

material. State v. Carter,  85 N.J. 300, 311 (1981)." The court further stated




1
    Brady v. Maryland,  373 U.S. 83 (1963).
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                                        4
defendant had not met the test to demonstrate the evidence had "the propensity

to influence the outcome of the trial."

      Finally, the court concluded defendant's assertions were not sufficient to

meet the Strickland/Fritz 2 standard for ineffective assistance claims. Based on

our review of the record, we discern no error requiring us to disturb the denial

of the petition nor the denial of a motion for a new trial.

      We also reject defendant's second argument regarding sentencing. Based

on our review, the application of aggravating factor  N.J.S.A. 2C:44-1(a)(1) did

not render the sentence illegal.

      Affirmed.




2
  State v. Fritz,  105 N.J. 42 (1987) (adopting the standard set forth in Strickland
v. Washington,  466 U.S. 668 (1984)).
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