STATE OF NEW JERSEY v. BOBBY L. 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NOT FOR PUBLICATION WITHOUT THE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-4186-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BOBBY L. BROWN,

     Defendant-Appellant.
__________________________

                   Submitted March 31, 2020 – Decided May 4, 2020

                   Before Judges Hoffman and Firko.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Warren County, Indictment No. 91-05-0273.

                   Bobby L. Brown, appellant pro se.

                   James L. Pfeiffer, Acting Warren County Prosecutor,
                   attorney for respondent (Dit Mosco, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
        Pro se defendant Bobby L. Brown appeals the May 2, 2019 Law Division

order denying his fourth post-conviction relief (PCR) petition, claiming he

received ineffective assistance of trial counsel and an illegal sentence. We

affirm.

                                        I.

        We briefly summarize the relevant facts. Defendant was convicted on two

counts of purposeful or knowing murder,  N.J.S.A. 2C:11-3(a)(1) and (2), along

with thirteen other charges set forth in Warren County Indictment No. 91-05-

0273.

        The trial court imposed a sentence of death for the murder of Alice Skov,

and life imprisonment with a thirty-year period of parole ineligibility for the

murder of John Bell.       The Supreme Court affirmed both of the murder

convictions and the life sentence for Bell's murder, but reversed defendant's

death sentence as to Skov. State v. Brown,  138 N.J. 481, 563 (1994).

        On remand, on March 17, 1995, the court sentenced defendant to life

imprisonment, with a thirty-year period of parole ineligibility as to Skov. We

affirmed the sentences on the Excessive Sentencing calendar. The Supreme

Court denied defendant's petition for certification. State v. Brown,  144 N.J. 587

(1996).


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      On April 24, 1997, defendant filed his first PCR petition, which the PCR

court denied. We affirmed. State v. Brown, No. A-188-99 (App. Div. Feb. 26,

2001). Almost ten years later, defendant filed a second PCR petition, initially

characterized as a motion to correct an illegal sentence, which we previously

noted has no time bar under Rule 3:22-12(a). The PCR court denied the petition

because both the Law and Appellate Divisions had previously adjudicated

defendant's illegal sentence claim. See R. 3:22-5.

      Pertaining to defendant's ineffective assistance of counsel claim, the PCR

court found it was time-barred because defendant asserted it beyond the five-

year period provided in Rule 3:22-12. We affirmed. State v. Brown, No. A-

3394-07 (App. Div. Apr. 30, 2009) (slip op. at 7).

      Thereafter, on December 8, 2011, defendant filed his third PCR petition.

On June 18, 2012, the PCR court denied the petition finding that it was filed

more than ninety days following the dismissal of defendant's second PCR

petition on October 25, 2007, and more than five years after the entry of the

judgment of conviction on March 17, 1995. The PCR court concluded that

defendant's third PCR petition was time-barred because it did not comply with

Rule 3:22-12(a)(4). Again, we affirmed. State v. Brown, No. A-6172-11 (App.

Div. Feb. 27, 2014) (slip op. at 4).


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       On February 14, 2019, almost twenty-five years after his conviction,

defendant filed the PCR petition under review.         In the petition, defendant

attested that his trial counsel did not inform him in open court about plea bargain

negotiations in violation of Rule 3:9-1(f), and defendant was not interviewed

prior to the Presentence Report Investigation (PSI), resulting in an inaccurate

presentence report and illegal sentence. Defendant claimed he was unaware of

the plea negotiations with the State, and co-defendant Coleen Alexander,

received more favorable treatment at her sentencing hearing. His affidavit also

stated that he was not provided Miranda1 warnings, and the sentencing judge

improperly considered defendant's conviction in Germany for street robbery

while he was serving in the U.S. Army as an aggravating factor. Although not

raised in the opinion, defendant claims for the first time on appeal, that the judge

should have recused himself.

       On May 2, 2019, the PCR court issued a written opinion denying

defendant's petition and entered a memorializing order. The PCR court found

defendant's petition to be time-barred because the relief sought was "well

outside the five[-]year period" and "the filing of [the] petition [did] not comply

with [Rule] 3:22-12(a)(4)."


1
    Miranda v. Arizona,  384 U.S. 436 (1966).
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      Additionally, the PCR court determined that on October 2007, "the

original sentencing judge weighed the aggravating and mitigating factors

correctly" and defendant's assertions as to an illegal sentence "are substantially

the same as his prior assertions." The PCR court also concluded that defendant's

claim that there is newly discovered evidence regarding his plea bargain and

information not communicated to him was time-barred.

      Defendant raises the following argument in his brief:

            THE POST[-]CONVICTION RELIEF COURT
            ERRED IN CATALOGING THE PAST PETITIONS
            AND THEN DENYING THE PETITIONER RELIEF
            WITHOUT ANY FINDINGS OF FACTS OR
            CONCLUSIONS OF LAW CONCERNING THE
            ISSUES RAISED DIRECTLY BEFORE THE COURT
            IN THE INTEREST OF JUSTICE THUS REQUIRING
            A REVERSE AND REMAND ON ALL THREE
            ISSUES RAISED BEFORE THE COURT.

      Having thoroughly reviewed the record, we conclude that the arguments

presented on appeal are entirely without merit. We affirm the denial of PCR

substantially for the reasons stated by the PCR court. We add the following.

      Defendant's claim that he was denied the effective assistance of counsel

as required by the Sixth Amendment to the United States Constitution is

considered under the standards enunciated in Strickland v. Washington,  466 U.S. 668, 687 (1984). In order to prevail on such a claim, a defendant first must


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show that his attorney's handling of the matter "fell below an objective standard

of reasonableness." Id. at 688.

      A defendant also must show that there exists a "reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Id. at 694. Our Supreme Court has adopted this standard

for evaluating ineffective-assistance-of-counsel claims under our State

constitution. State v. Fritz,  105 N.J. 42, 58 (1987).

      The test also applies to defendants who reject plea offers and go to trial,

alleging that their decision was due to an attorney's ineffective counseling.

However, in those cases, specific instances of attorney ineffectiveness existed,

such as assuring a client that the plaintiff had no proof of their case. Lafler,  566 U.S.  at 161.

      The record does not support defendant's arguments. As the PCR court

noted, defendant is claiming, for a fourth time, that there is newly discovered

evidence, he was counseled ineffectively, and he received an illegal sentence.

We agree with the PCR court that defendant's PCR claims are time barred

because his petition was filed beyond the five-year period required by Rules

3:22-4 and 3:22-12(a)(2).




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                                         6
      Rule 3:22-12(a)(2) provides that no second or subsequent petition for PCR

shall be filed more than one year after the latest of:

            (A) the date on which the constitutional right asserted
            was initially recognized by the United States Supreme
            Court or the Supreme Court of New Jersey, if that right
            has been newly recognized by either of those Courts
            and made retroactive by either of those Courts to cases
            on collateral review; or

            (B) the date on which the factual predicate for the relief
            sought was discovered, if that factual predicate could
            not have been discovered earlier through the exercise
            of reasonable diligence; or

            (C) the date of the denial of the first or subsequent
            application for [PCR] where ineffective assistance of
            counsel that represented the defendant on the first or
            subsequent application for [PCR] is being alleged.

      The record shows defendant argued he had ineffective assistance of

counsel relative to plea negotiations twelve to fourteen years after he was

sentenced. The PCR court was correct in concluding that defendant's PCR

petition on this claim failed to comply with Rule 3:22-12(a)(2), and that he was

also precluded from relief under Rule 3:22-12(a)(4).

      On October 10, 2007, the Court held that the original sentencing judge

properly weighed the aggravating and mitigating factors. Here, defendant's

argument about an illegal sentence mirrors his prior petitions. Therefore, his

illegal sentence claim has already been adjudicated and not subject to review on

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the merits. State v. McQuaid,  147 N.J. 464, 498 (1997). Moreover, we see no

prejudice.

      We have reviewed each of defendant's contentions and the applicable law,

and we conclude that the remainder of his arguments are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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