STATE OF NEW JERSEY v. LYLE G. PERSON (15-05-0666, BURLINGTON COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-1872-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LYLE G. PERSON,
a/k/a SOLES DERAY,
JAMES PERCY, LARRY G.
PERSON, and DERAY SOLES,
Defendant-Appellant.
___________________________
Submitted December 1, 2021 – Decided January 28, 2022
Before Judges Gilson and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 15-05-
0666.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Valeria Dominguez, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Lyle Person appeals from a June 22, 2020 order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. In
rejecting defendant's PCR petition, the PCR judge, Judge Terrence R. Cook,
issued a written opinion. We affirm substantially for the reasons set forth in
Judge Cook's thorough opinion.
Defendant was indicted for murdering his brother. In 2016, defendant
pled guilty to an amended charge of first-degree aggravated manslaughter,
N.J.S.A. 2C:11-4(a)(1). In pleading guilty, defendant admitted he got into an
argument with his brother, saw his brother walking as defendant was driving a
car, struck his brother with his car, and caused his brother's death. As part of
the negotiated plea, the State agreed to recommend a sentence of twenty-six
years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43 -
7.2.
At sentencing, the court found aggravating factor three (a risk of re-
offense), six (a prior criminal history), and nine (the need to deter), N.J.S.A.
2C:44-1(a)(3), (6), and (9). The court explained the facts supporting each of
those aggravating factors. The court also found mitigating factor six because
defendant had agreed to pay restitution. N.J.S.A. 2C:44-1(b)(6). Defendant was
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then sentenced to twenty-two years in prison, with periods of parole ineligibility
and parole supervision as required by NERA.
Defendant appealed his sentence, contending that it was excessive because
his criminal record was essentially double counted when it was used as a basis
for both aggravating factors three and six. We rejected that argument and
affirmed defendant's sentence. State v. Person, No. A-5192-15 (App. Div. Oct.
18, 2016).
Three years later, in 2019, defendant, representing himself, filed a PCR
petition seeking to have his sentence reduced. He was assigned PCR counsel
and his counsel made several arguments principally focusing on the contention
that defendant's counsel at sentencing had been ineffective in not arguing that
aggravating factors three and six were double counted.
On May 26, 2020, Judge Cook was prepared to hear oral argument, but
both defense counsel and the State stated that they would rely on their written
submissions. Thereafter, on June 22, 2020, Judge Cook issued an order and
written opinion denying defendant's PCR petition. In his opinion, Judge Cook
analyzed each of defendant's arguments. In particular, he focused on the
contention that defense counsel had been ineffective at sentencing. Judge Cook
pointed out that the procedural history, viewed in light of the well-established
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law, demonstrated that counsel at sentencing had not been ineffective and
defendant had suffered no prejudice.
On this appeal, defendant repeats the principal argument he presented to
Judge Cook:
THE PCR COURT ERRED IN DENYING MR.
PERSON AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED FROM PRIOR COUNSEL
EXPLAINING WHY HE FAILED TO OBJECT TO
THE SENTENCING COURT USING MR. PERSON'S
PRIOR CRIMINAL HISTORY IN FINDING
AGGRAVATING FACTORS 3 AND 6.
Having conducted a de novo review, we affirm substantially for the
reasons explained by Judge Cook. In short, defendant's argument lacks merit.
Moreover, it is procedurally barred by our prior affirmance of the sentence. See
State v. Echols, 199 N.J. 344, 357 (2009) (citing Rule 3:22-5) (explaining that a
PCR petition is procedurally barred if "the issue was previously decided on
direct appeal").
Affirmed.
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