STATE OF NEW JERSEY VS. PHILLIP A. DIXON (85-06-1145, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )


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  •                                       RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE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-5246-17T1
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    PHILLIP A. DIXON,
    Defendant-Appellant.
    __________________________
    Submitted May 13, 2019 – Decided May 22, 2019
    Before Judges Sabatino and Sumners.
    On appeal from Superior Court of New Jersey, Law
    Division, Camden County, Indictment No. 85-06-1145.
    Phillip A. Dixon, appellant pro se.
    Mary Eva Colalillo, Camden County Prosecutor,
    attorney for respondent (Linda A. Shashoua, Assistant
    Prosecutor, of counsel and on the brief).
    PER CURIAM
    In this pro se appeal, defendant Phillip A. Dixon seeks reversal of two
    decisions of Judge Kathleen Delaney dated April 24, 2018 and June 14, 2018
    denying his requests for relief from his 1987 conviction and ensuing 1991
    resentencing.
    Defendant was charged with the murder of a thirteen-year-old girl,
    aggravated criminal sexual contact, and other offenses by a Camden County
    grand jury. Following a 1987 jury trial, defendant was found guilty of most of
    the counts of the indictment but not guilty of robbery. At that time, the death
    penalty in New Jersey was still in effect. The jury imposed the death penalty in
    the capital phase of the trial.
    Defendant appealed as of right directly to the Supreme Court of New
    Jersey. In State v. Dixon, 
    125 N.J. 223
     (1991), the Court vacated the death
    sentence because of jury instruction flaws in the capital phase. The matter was
    remanded for resentencing.
    In November 1991, the judge who had presided over the trial resentenced
    defendant to an aggregate sentence of life plus five years, with a thirty-two-and-
    one-half-year parole disqualifier.    Defendant sought post-conviction relief
    ("PCR"), which was denied by the trial court in July 1997. That PCR denial was
    affirmed on appeal by this court in February 2000. State v. Dixon, No. A-7031-
    96 (App. Div. Feb. 25, 2000). Certification was denied by the Supreme Court
    of New Jersey in September 2000. State v. Dixon, 
    165 N.J. 528
     (2000).
    A-5246-17T1
    2
    According to the parties' briefs, defendant also pursued habeas corpus
    relief in the federal district court, which was denied in September 2004. That
    denial was upheld by the Third Circuit in February 2005, and certiorari was
    denied by the U.S. Supreme Court in October 2005. Dixon v. Cathel, 
    546 U.S. 891
     (2005).
    The present appeal arises out of what appellant in his pro se submission
    to the trial court described as motions for a new trial, to correct an illegal
    sentence, and for the appointment of counsel. Because his original May 2017
    filing could not be located, a duplicate was resubmitted, and the matter was
    referred to Judge Delaney.
    In her April 24, 2018 letter decision, Judge Delaney denied relief with
    respect to defendant's motions for a new trial and resentencing, finding the
    claims to be time-barred under Rule 3:20-2 and Rule 3:21-10.
    Subsequently, in her June 14, 2018 letter, Judge Delaney denied
    defendant's motion for reconsideration. This letter focused on the fact that when
    the court resentenced defendant in November 1991, it was making use of a
    presentence report that was generated in 1987. Judge Delaney found that the
    1987 presentence report was still "relatively current" and thus could be used at
    his 1991 resentencing on remand from the Supreme Court.
    A-5246-17T1
    3
    Defendant now appeals these April 2018 and June 2018 rulings. He raises
    these points in his briefs:
    POINT I
    THE COURT ERRED IN DENYING APPELLANT'S
    MOTIONS WITHOUT ISSUING ADEQUATE
    FACTUAL FINDINGS AND A STATEMENT OF
    REASONS (PLAIN ERROR).
    POINT II
    THE COURT'S DECISION DENYING THE MOTION
    TO CORRECT AN ILLEGAL SENTENCE IS
    CONTRARY TO ESTABLISHED CASE LAW AND
    COURT RULES (PLAIN ERROR).
    REPLY POINT I
    RESPONDENT'S BRIEF IS OFF-POINT, FAILS TO
    ADDRESS THE ISSUES RAISED BY APPELLANT
    AND SHOULD BE IGNORED BY THIS COURT.
    We reject defendant's arguments for both procedural and substantive
    reasons.    We agree with Judge Delaney that defendant's arguments are
    procedurally barred and should have been raised long ago. There is also no
    substantive merit to his claims.
    When the trial court resentenced defendant in 1991, it was not
    automatically required to have an updated presentence report. Even under
    A-5246-17T1
    4
    current case law, no such automatic requirement exists. State v. Randolph, 
    210 N.J. 330
    , 350 (2012).
    Defendant also complains that Judge Delaney did not address his assertion
    that the assistant prosecutor allegedly told the grand jurors that the State did not
    have to prove penetration in order to support a charge of aggravated sexual
    assault. In its responsive brief on appeal, the State correctly points out that even
    if this argument was properly before this court, it has no merit. For one thing,
    the indictment charged defendant with aggravated criminal sexual contact , not
    sexual assault, so penetration was not required and would not have been required
    at the trial. In addition, case law provides that any flaws in the grand jury
    proceedings are generally rendered harmless if the jury finds defendant guilty at
    trial. See State v. Simon, 
    421 N.J. Super. 547
    , 551 (App. Div. 2011); State v.
    Cook, 
    330 N.J. Super. 395
    , 411 (App. Div. 2000).
    Having carefully considered defendant's arguments, we find they have no
    merit. No further discussion is warranted. R. 2:11-3(e)(2).
    Affirmed.
    A-5246-17T1
    5
    

Document Info

Docket Number: A-5246-17T1

Filed Date: 5/22/2019

Precedential Status: Non-Precedential

Modified Date: 8/20/2019