Opinion
DOCKET NO. A-5551-10T4
06-19-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. IAN BURTON, Defendant-Appellant.
Ian Burton, appellant pro se. Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Alvarez.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 95-02-0213 and 95-06-0984.
Ian Burton, appellant pro se.
Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Ian Burton appeals from the denial of a motion to correct illegal sentences that he filed more than thirteen years after the last of the convictions. The sentences at issue are based on crimes charged in two indictments. Because the counts in one of the two indictments were severed for trial, the convictions were returned by three juries. Defendant's sentences were initially imposed in three proceedings that were held, respectively, on April 26, 1996, and January 3 and May 9, 1997.
On defendant's direct appeals from the two trials on Monmouth County Indictment No. 95-02-0213, we affirmed defendant's convictions for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(b); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a; and fourth-degree defacing firearms, N.J.S.A. 2C:39-9e. State v. Burton, Nos. A-1069-96, A-3783-96 (App. Div. Aug. 28, 1998) (slip op. at 2) (Burton I). Although the court affirmed defendant's convictions, we remanded for resentencing in a single proceeding and directed the judge to correct an illegal sentence. Id. at 7-8. In contrast, we rejected two other claims pertinent to defendant's sentence: 1) that his sentence was excessive; and 2) that the jury's decision to convict him of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, was inconsistent with their decision to acquit him of other charges. Id. at 4-8. The Supreme Court denied defendant's petition for certification. 157 N.J. 546 (1998).
On direct appeal from Indictment No. 95-06-0984, we affirmed defendant's convictions for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). State v. Burton, No. A-6963-96 (App. Div. Jan. 28, 1999) (Burton II). We also remanded for resentencing in this case. Id. at 9. The panel determined that because defendant had a prior conviction for a Graves Act offense — possession of a firearm with intent to use it unlawfully against the person of another, N.J.S.A. 2C:39-4a — as a matter of law, N.J.S.A. 2C:43-6c required the judge to sentence him to extended terms under the Graves Act for two of his convictions under Indictment No. 95-06-0984, first-degree armed robbery and first-degree attempted murder. Id. at 6. We held that the prior qualifying conviction was defendant's prior conviction for possession of a handgun with an unlawful purpose under Indictment No. 95-02-0213. Because the panel concluded that the judge was obligated to impose extended term sentences on those counts, the panel had no reason to consider whether it would have been proper to impose a discretionary extended term on one of those convictions, as the judge had apparently done. Id. at 8 n.2. In addition, the panel rejected defendant's claim that the judge erred in allowing the State to file an untimely motion for an extended term and concluded that his sentence was not excessive.
The trial judge resentenced defendant on both indictments on February 11, 1999. The Supreme Court denied certification that April. 158 N.J. 687 (1999).
Defendant filed his first petition for post-conviction relief on May 24, 1999; he raised an issue related to his conviction, not his sentence. After conducting an evidentiary hearing, the trial judge denied the petition, and we affirmed that denial on direct appeal. State v. Burton, No. A-0296-00 (App. Div. Jan. 15, 2002) (Burton III). The Supreme Court denied certification. 172 N.J. 180 (2002).
On June 15, 2007, defendant filed a motion to correct an illegal sentence entered on Indictment No. 95-06-0984 and subsequently a second petition for post-conviction relief. Among the several claims the trial judge rejected were claims that defendant's Graves Act sentence violated due process and that the sentence was illegal. See State v. Burton, No. A-4209- 07 (App. Div. Oct. 20, 2009) (Burton IV) (affirming the denial substantially for the reasons stated by the trial judge), certif. denied, 201 N.J. 442 (2010).
On June 15, 2007, defendant filed a second motion to correct an illegal sentence that was dismissed without prejudice. The motion at issue here was filed on November 23, 2010. Judge DeStefano heard the motion, and on June 17, 2011, he issued a written decision in which he set forth the eight points defendant raised in that petition and explained his reasons for rejecting each claim.
On appeal defendant raises five issues for our consideration:
I. THE LOWER COURT ERRED IN DETERMINING THAT THE FOLLOWING CLAIMS WERE TIME BARRED, BECAUSE THESE CLAIMS CONSTITUTE CHALLENGES TO AN ILLEGAL SENTENCE, WHICH MAY BE RAISED AT ANY TIME. PURSUANT TO R. 3:21-10(b)(5); R. 3:22-2(c) AND R. 2:10-3(5).
II. IN CONSIDERING WHETHER TO SENTENCE DEFENDANT AS A REPEAT GRAVES ACT OFFENDER, THE SENTENCING COURT CONSIDERED CRIMES THAT DEFENDANT WAS NEVER CONVICTED OF AND THE COURT MISTAKENLY BELIEVED DEFENDANT COMMITTED AN ASSAULT WITH A FIREARM. CONSEQUENTLY, DEFENDANT'S EXTENDED TERM SENTENCE AS A REPEAT GRAVES ACT OFFENDER SHOULD BE VACATED BECAUSE THE SENTENCE IS BASED ON FALSE CONVICTIONS AND INFORMATION.
III. THE EXTENDED TERM SECOND OFFENDER WITH A FIREARM SENTENCE, IMPOSED UNDER INDICTMENT NO. 95-06-0984, HAS TO BE VACATED BECAUSE, THE SENTENCING TRANSCRIPTS OF THE PRIOR CONVICTION IN QUESTION SHOWS: (a) DEFENDANT WAS NOT SENTENCED AS A GRAVES ACT OFFENDER; AND (b) NO GRAVES ACT HEARING WAS HELD PURSUANT TO N.J.S.A. 2C:4 3-6d.
A. THE GRAVES ACT SENTENCE IMPOSED PURSUANT TO N.J.S.A. 2C:4 3-6c ON INDICTMENT NO. 95-02-0213 IS ILLEGAL AND HAS TO BE VACATED BECAUSE, THE JURY'S FAILURE TO RETURN GUILTY VERDICTS ON CRIMES COMMITTED WITH A GUN, WHICH WERE COUPLED TO N.J.S.A. 2C:39-4a HAD PREVENTED THE STATE FROM ESTABLISHING THE FACTUAL BASIS TO SUPPORT ITS THEORY THAT THE GRAVES ACT SENTENCING PROVISIONS HAD BEEN TRIGGERED AS A CONSEQUENCE OF DEFENDANT POSSESSING A FIREARM TO USE IT UNLAWFULLY AGAINST THE PERSON OF THE VICTIM IN VIOLATION OF N.J.S.A. 2C:39-4a.
IV. ACCORDING TO THE SUPREME COURT OF NEW JERSEY, N.J.S.A. 2C:39-4a IS A STATUS CRIME STATUTE THAT SEEKS TO HEAD OFF THE COMMISSION OF A CRIME NOT YET PRESSED TO THE STAGE OF AN ATTEMPT. THEREFORE, DEFENDANT ARGUES HIS SENTENCE IS ILLEGAL BECAUSE IT AMOUNTS TO CRUEL AND UNUSUAL PUNISHMENT AND/OR IS FUNDAMENTALLY UNFAIR FOR A DEFENDANT WHO HAS BEEN CONVICTED OF NOT EVEN ACTUALLY ATTEMPTING TO COMMIT A CRIME WITH A FIREARM, TO BE SUBJECTED TO THE SAME GRAVES ACT SENTENCING PROVISIONS AND TO THE SAME CONSEQUENCES OF BEING DESIGNATED A GRAVES ACT OFFENDER AS DEFENDANTS WHO ACTUALLY ATTEMPTED AND/OR COMMITTED A CRIME WITH A FIREARM.
V. NEW JERSEY'S COURTS OVER FIFTY YEARS AGO, AND THE UNITED STATES SUPREME COURT OVER EIGHTY YEARS AGO, HAD ESTABLISHED PRECEDENTS THAT IF THE STATE BELIEVES A DEFENDANT HAS VIOLATED A SENTENCING ENHANCEMENT STATUTE, THEN THE SENTENCING ENHANCEMENT STATUTE MUST BE CHARGED VIA AN INDICTMENT AND PROVEN BEYOND A REASONABLE DOUBT TO A JURY. THEREFORE, THE STATE'S FAILURE TO OBTAIN AN INDICTMENT ON THE SENTENCING ENHANCEMENT STATUTE AND PROVE IT BEYOND A REASONABLE DOUBT TO A JURY AS WAS DONE IN STATE V. DIXON, MEANS DEFENDANT'S EXTENDED TERM/ENHANCED SENTENCE IS IN VIOLATION OF SAID PRECEDENTS AND HAS TO BE VACATED.
We have considered the arguments in light of the record and concluded that they have insufficient merit to warrant discussion beyond the brief explanation that follows. We address the issues in the order defendant presents them.
Defendant is mistaken when he asserts, in support of Point I, that Judge DeStefano denied claims challenging the legality of his sentence on the ground that they were time barred. The procedural bar relied upon by the judge in denying some of defendant's claims was not based on defendant's delay in filing the motion. Rather, it was based on the fact that the issues raised therein had been adjudicated on prior appeals. R. 3:22-5. The judge's assessment of the issues defendant raised on this petition for post-conviction relief and his understanding of the significance of the determinations made by this court on defendant's various appeals are unassailable. Accordingly, we agree with his application of the procedural bar stated in Rule 3:22-5 and affirm those determinations substantially for the reasons stated in his written opinion.
The arguments defendant presents in Point II rest on several mistaken impressions about the law and the procedural history of this case. As the panel in Burton II found, the extended term provision of the Graves Act, N.J.S.A. 2C:44-3d, applied to defendant when he was sentenced on Indictment No. 95-06-0984. That is so because of his prior conviction for possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a. N.J.S.A. 2C:44-3d mandates an extended term when "[t]he defendant is at least 18 years of age and has been previously convicted of any of the following crimes: 2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1, 2C:18-2, 2C:29-5, 2C:39-4a., . . . and he used or possessed a firearm, as defined in 2C:39-1f., in the course of committing or attempting to commit any of these crimes, including the immediate flight therefrom." Defendant's prior conviction was based on an indictment charging possession of a handgun with the purpose of using it unlawfully. To the extent defendant argues that he was acquitted of that charge, he is wrong. The juries that considered the charges against defendant in Indictment No. 95-02-0213 found defendant guilty of one of the two counts charging possession of a firearm with an unlawful purpose. The acquittal was on the allegations in count eight that related to two police officers; the conviction was based on the allegation in count five that related to Dawn Hylton. Finally, in Burton II, a panel of this court held, as a matter of law, that defendant had to receive two extended Graves Act sentences on Indictment No. 95-06-0984. Consequently, it is immaterial that the judge did not impose an extended term sentence based on the Graves Act when he sentenced defendant in 1997. When the judge resentenced defendant thereafter on remand from this court, the judge was obligated to follow this court's mandate.
The arguments raised in Point III of defendant's brief have been addressed on his prior appeals. Here, defendant points to a perceived inconsistency in the verdicts the jury reached on various counts of the indictment. As noted above, that question of inconsistency was addressed in our decision in Burton I, supra, slip op. at 5-6. Moreover, in order to convict defendant of the crime alleged in count five of Indictment No. 95-02-0213, the jury had to find that he possessed a handgun with the purpose of using it unlawfully. Even if inconsistency were fatal, see State v. Banko, 182 N.J. 44, 53 (2004), the jury's inability to agree on whether defendant had fired or pointed the gun at Hylton is not inconsistent with their determination that he had a gun in his possession with the purpose of using it unlawfully against her, which is all that is required for a prior conviction triggering a mandatory Graves Act sentence under the terms of N.J.S.A. 2C:44-3d.
In Point IV, defendant claims his extended term Graves Act sentence is unconstitutionally cruel and unusual because it rests on a conviction for a "status crime." In the circumstances of this case, defendant was sentenced to two extended terms on the basis of a prior conviction for possession with an unlawful purpose, but the convictions for which he received the extended-term sentences were for using a gun in a first-degree robbery and a first-degree attempted murder during which defendant not only threatened the victim with a gun but shot him multiple times. Under these circumstances, we cannot conclude that "the punishment goes beyond what is necessary to accomplish any legitimate penal aim." State v. Des Marets, 92 N.J. 62, 82 (1983).
Defendant presents an argument in Point V of his brief that would entitle him to relief if his conviction and sentence had not been affirmed on appeal years before the Supreme Court's decision in State v. Franklin, 184 N.J. 516, 539-40 (2005). The rules enunciated in Franklin, however, have no application to cases indicted, tried and appealed years earlier. 184 N.J. at 540 (giving the rules only "pipeline retroactivity"). The Supreme Court denied defendant's petition for certification of his direct appeal on April 29, 1999. Burton II, supra, 158 N.J. at 687.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION