The opinion
NOT FOR PUBLICATION WITHOUT THE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-0142-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WALTER BROWN,
Defendant-Appellant.
Submitted May 31, 2018 – Decided June 12, 2018
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment Nos.
92-05-0556, 92-07-0769 and 93-11-1285.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Juda Babuschak
Opacki, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant, Walter Brown, appeals from the April 21, 2016
Criminal Part order that denied, without an evidentiary hearing,
his petition for post-conviction relief (PCR). In his petition,
he challenged his sentences on three first-degree robbery
convictions. He raises two arguments on appeal:
POINT ONE
MR. BROWN IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR
FAILING TO ARGUE ADEQUATELY FOR MITIGATING
FACTORS AT SENTENCING.
POINT TWO
THE PCR COURT ERRONEOUSLY RULED THAT MR.
BROWN'S PETITION WAS TIME BARRED BECAUSE ANY
DELAY IN FILING THE PETITION WAS DUE TO
EXCUSABLE NEGLECT AND THERE IS A REASONABLE
PROBABILITY THAT IF THE DEFENDANT'S FACTUAL
ASSERTIONS WERE FOUND TO BE TRUE, ENFORCEMENT
OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL
INJUSTICE.
Having considered defendant's arguments in light of the record and
controlling law, we affirm.
This case involves three Mercer County indictments: Nos. 92-
05-0556, 92-07-0769, and 93-11-1285. Each indictment charged
defendant with first-degree robbery and other offenses. Each
indictment was tried to a jury and each jury convicted defendant
of first-degree robbery and other offenses. In each instance, the
sentencing judge merged the remaining offenses into the first-
degree robbery count and sentenced defendant on that crime.
On Indictment No. 92-05-0556, the court sentenced defendant
on February 25, 1994, to an extended custodial term of fifty years
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with twenty-five years of parole ineligibility. The court ordered
defendant to serve the sentence concurrent to a sentence he was
serving in Pennsylvania, but consecutive to any sentence imposed
for any New Jersey parole violation.
The Appellate Division affirmed defendant's conviction and
sentence on Indictment No. 92-05-0556. State v. Brown, No. A-
4516-93 (App. Div. May 15, 1995). In that appeal, defendant
argued: "THE COURT'S SENTENCING ANALYSIS FAILED TO TAKE INTO
ACCOUNT A SIGNIFICANT MITIGATING FACTOR." Id. (slip op. at 2).
In rejecting the argument, the court explained:
Defendant next maintains that the matter
should be remanded for resentencing because
the trial judge failed to consider defendant's
cooperation with authorities as a mitigating
factor. The record creates substantial doubt
as to defendant's motivation in giving his
statements. However, be that as it may, the
application of a mitigating factor in a
sentencing decision is a matter of discretion.
Cannel, New Jersey Criminal Code Annotated,
comment 5 on N.J.S.A. 2C:44-1. We find no
reason to conclude that the trial judge abused
his discretion in failing to consider the
factor. This was defendant's second Graves
Act offense. The presumptive term for an
extended Graves Act sentence is 50 years.
N.J.S.A. 2C:44-1(f)(1). The application of
that one mitigating factor would not have been
enough to conclude that the mitigating factor
substantially outweighed the aggravating
factors in this instance.
[Id. (slip op. at 4).]
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On Indictment No. 92-07-0769, the court sentenced defendant
on April 8, 1994, on the first-degree robbery count, to life
imprisonment with a parole ineligibility period of twenty-five
years. The court ordered defendant to serve the sentence
concurrent to a sentence he was serving in Pennsylvania and
concurrent to the sentence imposed on Indictment No. 92-05-0556
but consecutive to any sentence imposed for any New Jersey parole
violation.
The Appellate Division affirmed defendant's conviction and
sentence on Indictment No. 92-07-0769. State v. Brown, No. A-
5365-93 (App. Div. Dec. 26, 1995). In his appeal, defendant
argued, "THE SENTENCE IMPOSED WAS EXCESSIVE AS THE TRIAL COURT
FAILED TO APPLY THE SENTENCING GUIDELINES." Id. (slip op. at 3).
In rejecting the argument, the court noted defendant had not
disputed he was eligible for an extended term, but rather
complained the lengthy term was unjustified. Id. (slip op. at 6).
The court determined "the trial judge applied the appropriate
legislative guidelines, weighed the appropriate evidence in
determining aggravating and mitigating factors, and imposed a
sentence that does not shock the judicial conscience in light of
defendant's extensive prior criminal history." Ibid.
On Indictment No. 93-11-1285, on the first-degree robbery
count, the court sentenced defendant on May 27, 1994, to life
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imprisonment with a minimum parole ineligibility period of twenty-
five years. The court imposed the sentence concurrent to a
sentence defendant was serving in Pennsylvania at the time and
concurrent to the two other Mercer County indictments but
consecutive to any sentence imposed for any New Jersey parole
violation.
The Appellate Division affirmed defendant's conviction and
sentence on Indictment No. 93-11-1285. State v. Brown, A-0117-94
(App. Div. Mar. 11, 1996). Defendant argued, among other things,
"THE EXTENDED TERM OF LIFE IMPRISONMENT WITH A TWENTY-FIVE YEAR
TERM OF PAROLE INELIGIBILITY IN THIS CASE IS A MANIFESTLY EXCESSIVE
SENTENCE." In rejecting defendant's argument, the court
characterized the sentence as "unexceptional." Id. (slip op. at
3). The court explained defendant was subject to a mandatory
Graves Act sentence and a discretionary persistent offender
extended term. Ibid. Based on its review of the record, the
court found the trial judge followed the appropriate sentencing
guidelines. Ibid. The court also determined substantial evidence
in the record supported the trial court's findings concerning
aggravating and mitigating factors. Ibid. Accordingly, the court
concluded the sentencing judge did not abuse his discretion in
arriving at the prison term imposed. Id. (slip op. at 3-4).
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Defendant filed his PCR petition on December 1, 2014, more
than twenty years after entry of the last of the judgments of
conviction on the three Mercer County indictments. In his
petition, under the directive to state with specificity the facts
upon which defendant claimed relief, he responded: "Sentences, and
any other relief that may come about." In a supplemental verified
petition, he argued his constitutional rights were violated and
he received an illegal sentence.
In his PCR brief, defendant argued his counsel was ineffective
for failing to argue a mitigating factor at sentencing on the
first of the two Mercer County indictments. Defendant claimed the
trial court should have taken into consideration that he had
compensated one victim for the injury the victim sustained and was
willing to make restitution to another victim. As to the last of
the three indictments, defendant argued his counsel was
ineffective for failing to point out the mitigating factor that
his conduct was the result of circumstances unlikely to recur.
Defendant reasoned that the lengthy prison term he was serving
made it unlikely he would reoffend.
Defendant also argued his petition should not be time-barred
because the State would not be prejudiced as defendant was only
seeking to have his sentence amended.
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In a thorough written opinion, Judge Pedro J. Jimenez, Jr.,
denied defendant's PCR petition without an evidentiary hearing.
The judge determined the petition was time-barred by Rule 3:22-
12(a)(1) and that defendant had failed to allege any reason to
justify the delay in filing the petition. Instead, defendant
relied on the fact that the delay would not cause the State any
prejudice.
We affirm, substantially for the reasons expressed by Judge
Jiminez in his written opinion. Defendant's arguments are without
sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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