Opinion
DOCKET NO. A-3354-10T4
07-16-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARK TOMPKINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-03-0893.
Joseph E. Krakora, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Mark Tompkins, found guilty by a jury in 2004 of second-degree eluding, N.J.S.A. 2C:29-2b, appeals the trial court's two February 14, 2011 orders denying his motion for a new trial and partially denying his motion to amend the judgment of conviction. We affirm.
The State's proofs at trial established that on October 24, 2002, a Pontiac driven by defendant was stopped by a Newark police officer for making an illegal U-turn. Before the officer was able to issue a summons, defendant made an obscene gesture and sped away onto Interstate 78. The officer pursued the Pontiac, which raced away at about eighty miles per hour, went down an exit ramp, and then crashed into another vehicle. Defendant ran from the scene of the crash through the local neighborhood. He was eventually apprehended in the stairwell of an abandoned house about two blocks from the crash.
Defendant was issued various traffic summonses and was also charged with eluding. After the jury found him guilty of the eluding charge, the trial court imposed an extended-term sentence of fifteen years, with a seven-and-a-half-year period of parole ineligibility.
This is the third time that defendant has brought an appeal concerning his conviction. On direct appeal, we upheld defendant's conviction but remanded for resentencing. State v. Tompkins, No. A-5006-04 (App. Div. Dec. 8, 2006). The Supreme Court denied certification. State v. Tompkins, 189 N.J. 649 (2007). On resentencing, the same custodial term was imposed. Defendant then filed a petition for post-conviction relief ("PCR"), which the trial court denied. We affirmed the PCR denial in defendant's second appeal. State v. Tompkins, No. A-3503-08 (App. Div. Mar. 4, 2011). Again, the Supreme Court denied certification. State v. Tompkins, 208 N.J. 338 (2011).
In the present matter, defendant sought a new trial on his eluding conviction based upon assorted claims, including: that his trial counsel allegedly had not been given copies of the traffic summonses in pre-trial discovery; that his driving abstract did not reflect any dispositions for the traffic offenses; that the summonses were flawed because they omitted appearance dates and the arresting police officer's signature; that the officer issued a false accident report; that his pre-sentence report contained no statement from the car accident victim; and that he was held before trial without proper notice of the charges against him. Defendant also requested relief based upon the fact that certain entries on his judgment of conviction were incorrect.
After considering these arguments in a motion hearing at which defendant and his assigned assistant deputy public defender appeared, Judge Robert H. Gardner denied the new trial motion. The judge found that defendant's claims all lacked merit. The judge did, however, amend the judgment of conviction to correctly reflect that the eluding conviction was based upon a jury verdict and not a guilty plea, rejecting defendant's other claims of error in the terms recited in the judgment.
In his brief on the present appeal, defendant's attorney raises the following arguments:
POINT IDefendant also raises the following points in his pro se supplemental brief:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
A. THERE ARE NO PROCEDURAL BARS.
POINT II
IT WAS ERROR FOR THE COURT TO ALLOW THE DEFENDANT TO REPRESENT HIMSELF OR NOT TO GIVE STANDBY COUNSEL THE OPPORTUNITY TO EFFECTIVELY REPRESENT THE DEFENDANT.
POINT I
THE TRIAL COURT VIOLATED DEFENDANT[']S CONSTITUTIONAL RIGHTS, UNDER ART. 1. PAR. 7; UNDER THE N.J. CONST. AS WELL AS DEFENDANT[']S 4th, 5th, 6th, AND 14th AMEND. RIGHTS UNDER THE UNITED STATES CONSTITUTION: WHEN NO COURT ISSUED A WARRANT UPON PROBABLE CAUSE.
A. OFFICER WRIGHT VIOLATED N.J. STAT. ANN. 39:5-3. WHEN: THE CDR-1 COMPLAINT-SUMMONSES WERE RETURNED FOR THE FIRST TIME, "AFTER" 6 MONTHS AS FAILURE TO APPEARS, THUS DEPRIVING ANY COURT AUTHORITY TO HEAR THE COMPLAINTS, AND DEPRIVING DEFENDANT DUE PROCESS.
B. SPECIAL PROSECUTOR ROGER A. SOLOMON VIOLATED DEFENDANT[']S FEDERAL AND STATE CONSTITUTIONAL RIGHTS RAISED IN POINT ONE WHEN: NO INDICTMENT 03-03-083 WAS RETURNED IN OPEN ON, (3-11-2003); NOR, (7-9-2003).
C. SPECIAL PROSECUTOR ROGER SOLOMON & WILLIAM NOSSEN VIOLATED DEFENDANT['S] FEDERAL AND STATE CONSTITUTIONAL RIGHTS OF DUE PROCESS OF LAW: BECAUSE THE COURTS "DOCKET ENTRIES" ARE VOID ON FACE AND FILED RECORD THERE IN (2 SEPARATE PARTS) OF PROSECUTION AND BACK-DATED, AND BEING CREATED AFTER APPEAL.
POINT II
THE TRIAL COURT COMMITTED FACTUAL ERROR: IN VIOLATION OF DEFENDANT['S] FEDERAL AND STATE CONSTITUTIONAL RIGHTS; UNDER THE 4TH, 5TH, 6TH, AND 14TH AMENDMENT; IN ADDITION VIOLATED THE COURTS OWN ORDER: WHEN "CONTEMPT OF COURT PROCEEDINGS" WERE INTIATED W/OUT JURISDICTION OVER SUBJECT MATTER, NOR THE DEFENDANT, AND W/OUT AUTHORITY TO ENTER THE PARTICULAR ORDER. AND, BECAUSE THE COURT NEVER MENTIONED THESE PROCEEDINGS. DEFENDANT WAS DEPRIVED A HEARING.
A. THE TRIAL COURT COMMITTED FACTUAL ERROR: IN VIOLATION OF DEFENDANT RELEASE WHEN: A BAILJUMPING WAS ADDED WITH A PREVIOUSLY RECALLED: 10-25-2002 COMPLAINT "ATTEMPT TO ELUDE POLICE" AND ON 7-9-2003 ADMINISTRATIVELY DISMISSED WITHOUT DEFENDANT[']S KNOWLEGDE.
POINT III
THE TRIAL COURT COMMTITED FACTUAL ERROR: IN VIOLATION OF DEFENDANT['S] FEDERAL AND STATE CONSTITUTIONAL RIGHTS; UNDER THE 4TH, 5TH, 6TH AND 14TH AMENDMENT: WHEN THE COURT ENTERERD A GUILTY (7-9-2003) WITHOUT
DEFENDANT['S] KNOWLEDGE. AND AS A MATTER OF LAW MUST BE VACATED.
A. OFFICER KEVIN WRIGHT FAILED TO RETURN & FILE HIS POLICE REPORT: INVOLED.IN.A.ACCIDENT WITHIN 10 DAY'S, [KNOWING] THER[E] IS NO VICTIM, NO STATEMENT FROM A VICTIM, AND NO FILED COMPLAINT EXIST FOR LEAVEING THE [SCENE] OF A ACCIDENT S#-AJ 491194 RENDERING: THE TESTIMONY BEFORE
THE GRANDJURY, AND DEFENDANT [TRIAL] PREJUDICAL & UNFAIR.
POINT IV
THE [TRIAL] COURT COMMITTED FACTUAL ERROR: IN VIOLATION OF DEFENDANT[']S FEDERAL & STATE CONSTITUTIONAL RIGHTS STATED IN POINT 1/2/3. WHEN: THE COURT PLACED DEFENDANT ON TRIAL AND CONVICTED (9-16-2004) KNOWING A GUILTY PLEA (7-9-2003) WAS ENTERED WITHOUT DEFENDANT[']S KNOWLEDGE AND NEVER RETRACTED. RENDERING THE TRIAL CONVICTION ILLEGAL AND AS A MATTER OF LAW MUST BE VAC[A]TED.
Having fully considered these arguments, we affirm the trial court's orders, substantially for the reasons expressed in Judge Gardner's February 14, 2011 bench opinion. We need not address all of the points raised, but offer the following brief comments.
We unequivocally agree with Judge Gardner that the service and content of the traffic summonses, which were ultimately dismissed, have no bearing on defendant's guilt of the indictable offense of eluding. Moreover, defendant's claims either had already been raised or could have been raised in the prior appeals, and thus they were procedurally barred under Rules 3:22-4 and 3:22-5. Lastly, we discern no actual prejudice to defendant resulting from the fact that Judge Gardner permitted him, at his request, to present oral arguments in support of his motion, given that his public defender was also on hand to assist him and had entered an appearance. Because defendant's claims for relief were untenable, any error in the "hybrid" manner in which the motion was argued was clearly harmless. State v. Macon, 57 N.J. 325, 336 (1971); see also Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692-93 (1984) (requiring a demonstration of actual prejudice arising out of the alleged ineffective assistance of counsel).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION