STATE OF NEW JERSEY VS. ANTHONY KIDD (02-11-1492, MERCER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2831-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY KIDD, a/k/a JABAR,
and TIMOTHY MOORE,
Defendant-Appellant.
_____________________________
Submitted May 28, 2019 – Decided July 8, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 02-11-1492.
Anthony Kidd, appellant pro se.
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Juda Babuschak Opacki, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Anthony Kidd appeals from the January 19, 2018 Law Division
order, denying in part his pro se motion to correct an illegal sentence. Because
defendant also raised ineffective assistance of counsel claims, his motion may
also be characterized as his second petition for post-conviction relief (PCR).
For the reasons that follow, we affirm for the reasons expressed by the motion
judge, but remand for the correction of the Judgment of Conviction (JOC) .
We briefly recount the procedural history of defendant's case to lend
context to the issues that are the subject of this appeal. Following a jury trial,
defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b) (count
one); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1)
(counts three and seven); two counts of third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(2) (counts four and eight); two counts of fourth-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(4) (counts five and nine); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
ten); two counts of fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1)
(counts eleven and thirteen); and second-degree certain persons not to possess
weapons, N.J.S.A. 2C:39-7(a) (count twelve).1 Defendant was acquitted of two
1
The conviction for the certain persons charge followed a bifurcated trial before
the same jury.
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counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a) (counts
two and six).
The convictions stemmed from defendant, who was wanted for
questioning by Pennsylvania authorities, eluding police in a dangerous high-
speed chase on snow-covered roads. Defendant eventually exited his vehicle
after it fishtailed, immediately fired at two nearby officers, and fled on foot.
Evidence recovered at the scene, including a jacket containing dry cleaning
receipts, ultimately led to defendant's apprehension.
After appropriate mergers, defendant was sentenced to an aggregate term
of forty-seven years' imprisonment with twenty-eight-and-one-half years of
parole ineligibility. On his direct appeal, we affirmed the convictions, but
remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005), and
its progeny. State v. Kidd, No. A-2487-03 (App. Div. Sept. 28, 2005), certif.
denied, 185 N.J. 392 (2005). After he was re-sentenced, we again remanded to
allow defendant the right of allocution in an order entered July 5, 2007, pursuant
to our Excessive Sentence Oral Argument calendar. See R. 2:9-11. At the
second re-sentencing hearing conducted on January 8, 2008, the trial court
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imposed an aggregate sentence of forty-seven years with "[twenty-seven] years
without parole eligibility."2
Defendant filed a timely petition for PCR, alleging numerous claims of
trial error and ineffective assistance of trial and appellate counsel. His petition
was denied without an evidentiary hearing, and we affirmed that decision. State
v. Kidd, No. A-4234-12 (App. Div. May 14, 2015), certif. denied, 223 N.J. 281(2015).
On January 6, 2016, defendant filed the motion that is the subject of this
appeal3 to correct an illegal sentence pursuant to Rule 3:21-10.4 According to
the motion judge, defendant argued that his sentence was illegal because "the
2
The aggregate twenty-seven-year period of parole ineligibility recorded on the
JOC resulted from an inadvertent miscalculation by the court that was later
corrected when defendant filed the instant motion.
3
Defendant did not include the motion papers associated with this motion in
the record. See R. 2:6-1(a)(1). We therefore rely on the motion judge's
description.
4
Rule 3:21-10(b) provides, in part, that "[a] motion may be filed and an order
may be entered at any time . . . changing a sentence as authorized by the Code
of Criminal Justice, or . . . correcting a sentence not authorized by law including
the Code of Criminal Justice[.]" "We usually refer to an 'illegal' sentence in
terms of one which is not consistent with the dictates of the controlling statute,
although a defendant can also challenge a sentence because it was imposed
without regard to some constitutional safeguard or procedural requirement."
State v. Tavares, 286 N.J. Super. 610, 618 (App. Div. 1996).
A-2831-17T4
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sentence imposed in the [JOC was] not supported by the record" and "counsel
was ineffective" for failing to object to the trial court's jury instruction on "the
possession of a weapon charge."
In a January 19, 2018 written decision, the judge "agree[d] that
[defendant's] sentence [was] not supported by the record." The judge explained:
At your January 8, 2008 resentencing, the [trial court]
sentenced you to an aggregate prison term of [forty-
seven] years with [twenty-three] years of minimum
parole ineligibility. You received a term of
imprisonment of [twenty] years with [ten] years
minimum parole ineligibility on [c]ount three (second[-
]degree aggravated assault upon Lieutenant William
Wittmer); [5] and a [ten]-year term of imprisonment with
[five] years minimum parole ineligibility on [c]ount
seven (second[-]degree aggravated assault upon
Patrolman Raoul Villera); a [ten]-year term of
imprisonment with [five] years minimum parole
ineligibility on [c]ount one (second[-]degree eluding);
and a [seven]-year term of imprisonment with [three]
years minimum parole ineligibility on [c]ount twelve
(second[-]degree certain person not to possess a
firearm). These sentences [were] to run consecutively.
You were also sentenced to [eighteen] months of
incarceration for [c]ounts [eleven] and [fourteen
(fourth-degree tampering with evidence)], which were
to run concurrently with all other sentences.
5
This sentence was an extended term imposed pursuant to N.J.S.A. 2C:44-3(a).
A-2831-17T4
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The judge continued that after merging the lesser-included aggravated
assault counts and the possession of a weapon for an unlawful purpose count
into the second-degree aggravated assault counts,
[y]our [JOC] reflects an aggregate sentence of [forty-
seven] years with [twenty-seven] years minimum
parole ineligibility. This sentence is inconsistent with
the sentence that was imposed at your resentencing
hearing. Accordingly, your January 8, 2008 [JOC] . . .
has been corrected to impose an aggregate term of
[forty-seven] years of imprisonment with [twenty-
three] years of parole ineligibility.
Turning to defendant's second claim asserting ineffective assistance of
counsel by failing to object to a purported erroneous jury charge, the judge
denied the claim on procedural grounds, "point[ing] out that [the] claim could
have been raised in [defendant's] direct appeal or in [his] prior petition[] for
[PCR]." See State v. Marshall, 148 N.J. 89, 144 (1997) ("Rule 3:22-4 essentially
bars all grounds for post-conviction relief that reasonably could have been raised
in a prior proceeding.").
The judge also denied the claim on the merits, finding defendant failed to
establish a prima facie case of ineffective assistance of counsel (IAC) under the
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standard formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984).6
The judge explained:
You contend that "[c]ounsel was ineffective for
fail[ing] to argue that [the] trial court committed
reversible error by failing to instruct the jury [on] all
four material elements to the possession of a weapon
charge." You contend that the trial court omitted
element four, "defendant's purpose was to use the
firearm unlawfully." However, your assertion is
erroneous. The trial court charged the jury that it must
find "[t]hat the defendant's purpose was to use the
firearm unlawfully." Thus, the trial court included this
material element in its jury instructions for the weapons
charge.
. . . Because the trial court instructed the jury on the
material element on the "unlawful use of the firearm,"
counsel did not have an obligation to object to the jury
instructions. In other words, counsel cannot be
ineffective for failing to object to instructions that
clearly included all the material elements of the charge.
Thus, you have not satisfied the first prong of the
Strickland test and failed to demonstrate a prima facie
claim for relief.
The judge entered a memorializing order and issued a corrected JOC, and this
appeal followed.
6
To prevail on a claim of IAC, a defendant must satisfy a two-part test.
Specifically, the defendant must show that his attorney's performance was
deficient and that the "deficient performance prejudiced the defense."
Strickland, 466 U.S. at 687. See State v. Fritz, 105 N.J. 42, 49-53 (1987)
(adopting the Strickland two-part test for IAC claims).
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On appeal, defendant raises the following points for our consideration:
I. THE [JOC] IS INCONSISTENT WITH THE
JANUARY []8, 2008 RESENTENCING
TRANSCRIPT[.]
II. THE LAW DIVISION FAILED TO COMPLY
WITH NEW JERSEY COURT [RULES] 1:21-1, 3:21-
4(B)[,] AND 3:21-10(C) (NOT RAISED BELOW)[.]
III. THE LAW DIVISION CONVICTED
[DEFENDANT] ON A[N] OFFENSE NOT
CHARGED IN THE INDICTMENT[] (NOT RAISED
BELOW[).]
IV. [DEFENDANT'S] SENTENC[ING]
PROCEEDING[] WAS CONDUCTED IN
VIOLATION OF THE CONSTITUTION OF THE
UNITED STATES[.]
V. THE HARMLESS ERROR RULE IS
UNCONSTITUTIONAL AS APPLIED TO
[DEFENDANT] IN THIS CASE[] (NOT RAISED
BELOW[).]
VI. NEW JERSEY PRACTICES AND
PROCEDURES OF EXCLUDING TRIAL ERRORS
AS MITIGATION ARE INVALID AS APPLIED[]
(NOT RAISED BELOW[).]
VII. [DEFENDANT] WAS PROSECUTED AND
PUNISHED MORE THAN ONCE FOR THE SAME
OFFENSE[] (NOT RAISED BELOW[).]
We address only the two claims presented to the judge and will not
consider defendant's remaining arguments, presented for the first time on appeal,
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because they are neither jurisdictional in nature nor do they substantially
implicate the public interest. See State v. Robinson, 200 N.J. 1, 20 (2009)
(stating that it is a well-settled principle "that our appellate courts will decline
to consider questions or issues not properly presented to the trial court when an
opportunity for such a presentation is available unless the questions so raised on
appeal go to the jurisdiction of the trial court or concern matters of great public
interest" (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))).
On appeal, defendant renews his argument that trial counsel was
ineffective by failing to object when the trial court "relieved the [S]tate of its
burden by not charging the [f]ourth [e]lement [of possession of a firearm for an
unlawful purpose] to the jury[.]" We disagree.
We review the legal conclusions of a PCR court de novo, and, where an
evidentiary hearing has not been held, it is within our authority to "conduct a de
novo review of both the factual findings and legal conclusions of the PCR court."
State v. Harris, 181 N.J. 391, 419-21 (2004) (emphasis omitted). To support a
claim of ineffective assistance of counsel, a defendant must prove both prongs
of the Strickland/Fritz two-part test by a preponderance of the evidence, State v.
Holland, 449 N.J. Super. 427, 434 (App. Div. 2017), and has a high bar to
"overcome [the] 'strong presumption' that counsel exercised 'reasonable
A-2831-17T4
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professional judgment' and 'sound trial strategy' in fulfilling his
responsibilities." State v. Nash, 212 N.J. 518, 542 (2013) (quoting State v. Hess,
207 N.J. 123, 147 (2011)). Moreover, "[p]rocedural bars exist in order to
promote finality in judicial proceedings." State v. McQuaid, 147 N.J. 464, 483
(1997). Thus, subject to limited exceptions, "Rule 3:22-4 imposes a procedural
bar to prevent claims from being raised on PCR that reasonably could have been
raised on direct appeal." Ibid. Applying these principles, we reject defendant's
claim of IAC, both procedurally and on the merits, for the reasons expressed by
the judge.
Relying on State v. Pohlabel, 40 N.J. Super. 416 (App. Div. 1956),
defendant also argues that "[r]econstruction of the record" is required "because
the forty[-]seven[-]year[] prison term with a twenty[-]seven[-]year mandatory
minimum parole ineligibility in the January []8, 2008 resentencing
transcript[,] . . . as acknowledge[d] by the Law Division [j]udge in his January
19, 2018 [o]pinion . . . , does not accurately reflect the proceedings." Further,
defendant asserts the judge violated Rule 3:21-4(b) by changing his sentence
without him or the prosecutor "being present," or defendant being "allowed to
[a]llocute[.]"
Rule 3:21-4(b) provides that a
A-2831-17T4
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[s]entence shall not be imposed unless the defendant is
present or has filed a written waiver of the right to be
present. Before imposing sentence[,] the court shall
address the defendant personally and ask the defendant
if he or she wishes to make a statement in his or her
own behalf and to present any information in mitigation
of punishment. The defendant may answer personally
or by his or her attorney.
This right extends to resentencing proceedings, where a defendant is entitled to
allocution. Tavares, 286 N.J. Super. at 616.
In Pohlabel, we explained that "where there is a conflict between the oral
sentence and the written commitment, the former will control if clearly stated
and adequately shown, since it is the true source of the sentence, instead of the
latter which is merely the work of a clerk." 40 N.J. Super. at 423. We therefore
held that to the extent there is a conflict between the oral sentence and the
written commitment, the latter "must be regarded as a clerical mistake, subject
to correction by the court, with or without notice[.]" Ibid. We reasoned that in
those circumstances, "there was no occasion for notice" because the correction
would not "impair[] any substantive right of the defendant," and "because it
merely conformed the official record with the oral sentence imposed in the first
instance[.]" Ibid. Accord State v. Walker, 322 N.J. Super. 535, 556 (App. Div.
1999); State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005).
A-2831-17T4
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Here, we agree with the motion judge that the transcribed remarks of the
sentencing judge clearly demonstrate that the aggregate sentence imposed at the
January 8, 2008 resentencing hearing was forty-seven years of imprisonment
with twenty-three years of parole ineligibility. Therefore, the aggregate twenty-
seven years of parole ineligibility, mistakenly referenced by the sentencing
judge at the end of the proceeding and thereafter recorded in the JOC, was a
clerical mistake, subject to correction by the motion judge without notice as
occurred here. Indeed, in these circumstances, "a mere 'ministerial act' . . .
sufficed to amend the judgment." Tavares, 286 N.J. Super. at 616.
However, we do agree with defendant and the State that the corrected JOC
mistakenly reflects that defendant was also indicted for murder in counts two
and six, instead of attempted murder. We therefore remand the matter to again
correct the JOC to accurately reflect the charges.
To the extent we have not addressed a particular argument, it is because
either our disposition makes it unnecessary or the argument is without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Likewise, we
decline to consider the new or expanded arguments raised by defendant in his
reply brief. See State v. Smith, 55 N.J. 476, 488 (1970) (stating that a party is
not permitted to use a reply brief to enlarge his main argument or advance a new
A-2831-17T4
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argument); see also Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J.
Super. 590, 596 (App. Div. 2001) ("Raising an issue for the first time in a reply
brief is improper.").
Affirmed in part and remanded in part to correct the JOC consistent with
this opinion. We do not retain jurisdiction.
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