Opinion
DOCKET NO. A-2335-10T3
01-13-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEFFREY PICKETT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jeffrey R. Jablonski, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-05-1733.
Joseph E. Krakora, Public Defender, attorney for appellant (Jeffrey R. Jablonski, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by ACCURSO, J.A.D.
Defendant Jeffrey Pickett appeals, as within time, from an order of October 23, 2008 denying his petition for post-conviction relief. Because the issues defendant raises as to his sentence have already been conclusively determined adversely to him in prior appeals, we affirm. R. 3:22-5. State v. Marshall, 173 N.J. 343, 350-53 (2002) (holding that R. 3:22-5 bars PCR claims which are either identical or "substantially equivalent" to those previously adjudicated on direct appeal or in a prior PCR petition); State v. McQuaid, 147 N.J. 464, 484 (1997).
A jury found defendant guilty in 1994 of three counts of first-degree attempted murder of Newark police officers Umar Abdul-Hakeem, Jevon Mintz, and Ronald Soto, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3; three counts of third-degree aggravated assault against Abdul-Hakeem, Mintz, and Soto, N.J.S.A. 2C:12-1b(1); fourth-degree aggravated assault against Soto, N.J.S.A. 2C:12-1b(4); third-degree terroristic threats against Soto, N.J.S.A. 2C:12-3; third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1). The sentencing court determined that defendant was extended-term eligible, either as a persistent offender under N.J.S.A. 2C:44-3(a), or as a second Graves Act offender under N.J.S.A. 2C:44-3(d) and sentenced him to an aggregate life term with a thirty-five year period of parole ineligibility.
Defendant filed a timely appeal of his conviction and sentence. Among the several issues defendant raised as to his sentence, including those raised in his supplemental pro se brief, were the following:
POINT IIWe affirmed defendant's conviction and sentence, id. at 6, and the Supreme Court denied certification, State v. Pickett, 148 N.J. 459 (1997).
THE CONSECUTIVE SENTENCES IN THIS CASE ARE EXCESSIVE AND VIOLATE THE PRINCIPLES OF STATE V. DUNBAR, 108 N.J. 80 (1987), AND STATE V. YARBOUGH, 100 N.J. 627 (1986).
A. The Extended Term is Excessive.. . . .
B. The Sentences Should Not be Consecutive.
POINT III
DEFENDANT WAS DEPRIVED OF THE RIGHT TO FUNDAMENTAL FAIRNESS WHEN THE TRIAL COURT ERRONEOUSLY IMPLIED [SIC] THE EXTENDED TERM IN ABSEN[CE] OF A PRIOR GRAVES ACT CONVICTION, IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS AS GUARANTEED BY THE [FOURTEENTH] AMENDMENT OF THE UNITED STATES CONSTITUTION.
[State v. Pickett, Docket No. A-4277-93 (App. Div. July 19, 1996) (slip op. at 3-4).]
Defendant's first PCR petition, filed on October 29, 2004, challenging his sentence was denied as time-barred. No appeal was taken. On July 29, 2005, defendant filed a motion to correct an illegal sentence. That motion was denied by order of August 27, 2007, for reasons expressed in an accompanying letter opinion.
Defendant appealed from that order to this court raising two issues:
POINT IWe determined that "[t]he issues raised in defendant's motion to correct an illegal sentence are identical to the sentencing issues raised and rejected in our 1996 opinion. Therefore, defendant's arguments are barred as having been previously raised. R. 3:22-5." Id. at 4. Nevertheless, we proceeded to review the claims on the merits, concluding that defendant was both extended-term eligible because of his extensive prior criminal history and under the Graves Act. Ibid. We found that defendant had not received "two extended terms" as he claimed and that his sentence was not illegal. Id. at 5. The Supreme Court denied defendant's petition for certification, State v. Pickett, 196 N.J. 465 (2008).
THE SENTENCING COURT IMPROPERLY SENTENCED PETITIONER TO TWO EXTENDED TERMS, BOTH AS A PERSISTENT OFFENDER, AS WELL AS A SECOND GRAVES ACT OFFENDER[.] ADDITIONALLY, THE GRAVES ACT EXTENDED TERM IS ILLEGAL, ABSENT OF [SIC] THE PROOF THAT THE WEAPON USED IN THE PRIOR CONVICTION WAS A FIREARM. THUS, THE SENTENCE IMPOSED UPON DEFENDANT IS ILLEGAL AND MUST BE CORRECTED.
POINT II
(a). MOTION TO AMEND THE FINDINGS BY THE COURT TO QUESTION THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE FINDINGS PURSUANT TO R. 1:7-4, (b). THE SENTENCING COURT VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL and HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS, AS GUARANTEED BY THE UNITED STATES CONSTITUTION, (c). THE LIFE SENTENCE IMPOSED ON DEFENDANT FOR ATTEMPTED MURDER, IS EXCESSIVE AND VIOLATES THE PRINCIPLES
GOVERNING PUNISHMENT FOR INCHOATE CRIMES, UNDER N.J.S.A. 2C:5-4(b)(2).
[State v. Pickett, Docket No. A-4552-06 (App. Div. June 30, 2008) (slip op. at 1-2).]
On February 27, 2007, defendant filed another PCR petition before a different judge. That judge assigned counsel pursuant to Rule 3:22-6(b), because she concluded that defendant's "motion to correct an illegal sentence was improperly procedurally barred at the last proceeding." A review of the transcript of oral argument on the petition conducted on October 21, 2008, makes clear that the judge believed the "last proceeding" to have been the trial court's denial of defendant's first PCR filed October 29, 2004, and denied on June 5, 2005, from which no appeal was taken. Defendant did not advise the trial court of his subsequent motion to correct an illegal sentence. Accordingly, the trial court was not aware that defendant's claims had already been denied in the trial court, affirmed by this court, and that the Supreme Court had the month before denied certification.
Hearing the claims anew, the trial judge found that defendant was not eligible for an extended term pursuant to the Graves Act, but was properly sentenced as a persistent offender and denied defendant's petition. Defendant raises the following issues on appeal:
Because appeals are taken from orders and not opinions, State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002), we need not address the trial court's conclusion that defendant was not eligible for an extended term pursuant to the Graves Act.
[I.] THIS COURT SHOULD REMAND THIS MATTER TO THE TRIAL COURT FOR PROPER SENTENCING SINCE [DEFENDANT] WAS UNCONSTITUTIONALLY SENTENCED AS A "PERSISTENT OFFENDER" AND SINCE HE RECEIVED AN UNREASONABLE SENTENCE THAT WAS MANIFESTLY UNJUST.
A. THE SENTENCING COURT ABUSED ITS DISCRETION IN IMPOSING A DISCRETIONARY EXTENDED TERM UPON [DEFENDANT] AS A PESISTENT OFFENDER.
B. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Additionally, defendant raises the following issues pro se:
(A) APPELLANT DISAGREES WITH THE PCR COURT'S ASSESSMENT, THAT HE QUALIFIES FOR ENHANCE[D] SENTENCING AS A PERSISTENT OFFENDER UNDER N.J.S.A. 2C:44-3(a).
(B) THE PRESENT SENTENCE IS ILLEGAL BECAUSE IT VIOLATES N.J.S.A. 2C:44-5a(2), 2C:44-6(e), 2C:44-6[6] AND HIS CONSTITUTIONAL RIGHTS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS.
Having reviewed the record, we conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and clearly barred by having been already determined adversely to him. R. 3:22-5. Marshall, supra, 173 N.J. at 350-53; McQuaid, supra, 147 N.J. at 484.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION