State of New Jersey v. Jonathan Black ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1272-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JONATHAN BLACK, a/k/a
JONATHAN A. BLACK,
Defendant-Appellant.
_________________________
Argued September 10, 2024 – Decided September 30, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 04-10-1268,
04-10-1269, and 04-10-1303.
Philip Nettl argued the cause for appellant (Benedict
Altman & Nettl, LLC, attorneys; Philip Nettl, on the
brief).
Meredith L. Balo, Assistant Prosecutor, argued the
cause for respondent (James O. Tansey, First Assistant
Prosecutor of Union County, Designated Prosecutor for
the purpose of this appeal, attorney; Meredith L. Balo,
of counsel and on the brief).
PER CURIAM
This is the sixth appeal filed by defendant Jonathan Black related to his
convictions and sentences for three armed robberies. In this appeal, defendant
challenges three orders denying his motion to vacate an alleged illegal sentence
and denying his second petition for post-conviction relief (PCR). We affirm all
three orders because defendant's sentence was not illegal and because his PCR
petition was time-barred and lacks merit.
I.
In 2004, defendant was charged with ten crimes related to three armed
robberies. The charges were made in three separate indictments and concerned
robberies committed in April 2004, when defendant was eighteen years of age.
In Indictment No. 04-10-1303 (I-1303), defendant and a codefendant were
charged with crimes related to the robbery and shooting of an attendant at a gas
station on April 12, 2004. Defendant was charged with four crimes: first-degree
armed robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b).
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In Indictment No. 04-10-1268 (I-1268), defendant and two codefendants
were charged with crimes related to the armed robbery of a 7-Eleven store in the
early hours of April 20, 2004. Defendant was indicted for three crimes : first-
degree armed robbery; second-degree possession of a weapon for an unlawful
purpose; and third-degree unlawful possession of a weapon.
In Indictment No. 04-10-1269 (I-1269), defendant and the same
codefendants were charged with crimes related to the armed robbery of a Quick
Chek that occurred on April 20, 2004, approximately an hour after the robbery
at the 7-Eleven. Defendant was indicted for three crimes: first-degree armed
robbery; second-degree possession of a weapon for an unlawful purpose; and
third-degree unlawful possession of a weapon.
The charges under I-1303 were tried first in May 2006. A jury found
defendant guilty of all four crimes.
The following month, defendant was sentenced for those four convictions
under I-1303. The convictions for aggravated assault and possession of a
weapon for an unlawful purpose were merged into the robbery conviction. On
the robbery conviction, defendant was sentenced to sixteen years in prison, with
periods of parole ineligibility and supervision as prescribed by the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. On the unlawful possession of a
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weapon conviction, defendant was sentenced to four years in prison and that
sentence was run concurrent to his robbery sentence. Thus, for the convictions
under I-1303, defendant was sentenced to an aggregate of sixteen years in prison
subject to NERA.
Meanwhile, the trial court granted the State's motion to join the charges
under I-1268 and I-1269. Those charges then proceeded to trial and in June
2006, a jury found defendant guilty on all six charges.
In September 2006, defendant was sentenced for the convictions under I-
1268 and I-1269. The two convictions for possession of a weapon for an
unlawful purpose were merged into the two robbery convictions. On each of the
robbery convictions, defendant was sentenced to fourteen years in prison subject
to NERA. The court then sentenced defendant to five years in prison on the two
convictions for unlawful possession of a weapon and directed that those
sentences were to run concurrent to the robbery sentences. Addressing the issue
of consecutive sentences, the court analyzed the factors under State v. Yarbough,
100 N.J. 627 (1985), and explained that the two robbery convictions under I-
1268 and I-1269 should run consecutively to each other because there were two
separate crimes, involving separate victims, at separate locations. In that regard,
the court reasoned:
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I think that counsel is right that if they were - - if we
were just talking about one case with two different
victims in one place, well, you might be considered - -
that should be considered probably to run concurrent.
But there were multiple victims in these crimes and
taking that into consideration with also the factor that
there can be no free crimes in a system for which the
punishment shall fit the crime, I'm going to impose
consecutive sentences in this case, having taken into
consideration that this is a violent act, that each of these
two robberies for which you were convicted each carry
with them a [ten] to [twenty] year sentence as first[-
]degree robberies.
The court also decided to run each of those sentences consecutive to the
already imposed sixteen-year sentence defendant was then serving for his
convictions under I-1303. Consequently, for his ten convictions under the three
indictments, defendant was sentenced to a total of forty-four years in prison with
over thirty-seven years of parole ineligibility.
Defendant appealed all his convictions and sentences under I-1303, I-
1268, and I-1269. Those challenges were made in two separate appeals: one
challenging his convictions and sentence under I-1303, and another challenging
his convictions and sentences under I-1268 and I-1269.
In February 2009, we affirmed defendant's convictions under I-1303. We,
however, remanded for resentencing because the sentencing court incorrectly
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used aggravating factors one and two when sentencing defendant on the robbery
conviction. State v. Black, No. A-0224-06 (App. Div. Feb. 13, 2009).
The resentencing took place in April 2009. At the resentencing, the court
did not change its ruling on the mergers or the concurrent sentence for the
conviction for unlawful possession of a weapon. Addressing the robbery
conviction under I-1303, the court found that aggravating factors three and nine,
and mitigating factor seven applied. The court then found that the aggravating
factors outweighed the mitigating factor and imposed the same sixteen-year
prison term subject to NERA. The court did not address whether defendant's
resentencing under I-1303 should run consecutive to his sentences under I-1268
and I-1269.
Thereafter, defendant appealed his resentence under I-1303, contending
that the sentence was excessive. We heard that appeal on a sentencing-only
calendar, and rejected defendant's argument and affirmed his resentence for the
convictions under I-1303. State v. Black, No. A-6136-08 (App. Div. Dec. 15,
2010).
In July 2009, defendant filed a self-represented PCR petition related to his
conviction under I-1303, claiming that his trial counsel was ineffective, and that
the prosecutor's conduct had deprived him of his right to a fair trial. This was
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defendant's first of several PCR petitions relating to his convictions under the
three indictments.
In December 2009, we also affirmed defendant's convictions and
sentences under I-1268 and I-1269. State v. Black, No. A-3336-06 (App. Div.
Dec. 24, 2009). On that appeal, defendant challenged his sentences as excessive.
In rejecting that sentencing argument, we reasoned that "the sentencing factors
identified by the judge [were] supported by the evidence," the sentences were
"in accord with the sentencing guidelines and based on a proper weighing of the
factors," and the sentences did "not shock our judicial conscience." Id. (slip op.
at 8).
In May 2010, defendant filed a self-represented PCR petition related to
his convictions and sentences under I-1268 and I-1269, arguing that his trial
counsel and appellate counsel were ineffective. Defendant's two PCR petitions,
one for I-1303 and one for I-1268 and I-1269, were consolidated for oral
argument. Thereafter, in December 2013, the PCR court issued two orders,
with accompanying written opinions, denying both PCR petitions without
evidentiary hearings.
In May 2016, we issued two opinions affirming the denials of those PCR
petitions. State v. Black, No. A-3608-13 (App. Div. May 19, 2016) (concerning
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I-1303); State v. Black, No. A-4150-13 (App. Div. May 19, 2016) (concerning
I-1268 and I-1269). The New Jersey Supreme Court denied defendant's
petitions for certification of those decisions. State v. Black, 228 N.J. 50 (2016)
(concerning I-1303); State v. Black, 228 N.J. 245 (2016) (concerning I-1268 and
I-1269).
In late 2016, defendant filed two habeas corpus petitions with the United
States District Court for the District of New Jersey challenging his convictions
under I-1268, I-1269, and I-1303. The federal court denied those petitions.
In 2020 and 2021, defendant filed motions in the Law Division to correct
an alleged illegal sentence and for PCR. In those motions and PCR petitions,
defendant challenged his convictions and sentences under all three indictments.
Arguments on those applications were heard by the same PCR judge on
November 14, 2022. That same day, the court denied the motions and petitions,
explaining its reasons on the record and issuing three separate orders. Defendant
now appeals from the three November 14, 2022 orders denying his motion to
correct an alleged illegal sentence and denying his second set of PCR petitions.
II.
On this appeal, defendant presents four arguments, which he articulates as
follows:
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I. The aggregate 44-year sentence Defendant is
currently serving is illegal, because it treats the
sentence on Ind. No. 04-10-1303-I as
consecutive, despite that never being ordered at
the remand sentencing.
II. Defendant received ineffective assistance of
sentencing counsel on Ind. No. 04-10-1303-I, in
violation of the Sixth Amendment to the United
States Constitution and Article I, Paragraph 10 of
the New Jersey Constitution, by failing to argue
for a concurrent sentence after the original
sentence was vacated and remanded, and
ineffective assistance of PCR counsel by failing
to raise that issue in his first PCR Petition.
III. Defendant received ineffective assistance of
appellate counsel on Ind. Nos. 04-10-1268 and
1269-I, in violation of the Sixth Amendment to
the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution, for
failing to alert the Appellate Division that the
trial court's statement of reasons for consecutive
sentences failed to comply with State v.
Yarbough, and ineffective assistance of PCR
counsel by failing to raise that issue in his first
PCR Petition.
IV. The relief requested is not procedurally barred.
A. The Consecutive Sentences.
Defendant challenges his resentence on the robbery conviction under I-
1303, arguing that the sentence was illegal because it did not address whether
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that sentence should be consecutive to the sentences under I-1268 and I-1269.
That argument is wrong as a matter of law. It is also procedurally flawed.
"[A]n illegal sentence is one that 'exceeds the maximum penalty provided
in the Code for a particular offense' or a sentence 'not imposed in accordance
with the law.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v.
Murray, 162 N.J. 240, 247 (2000)). "There is no temporal limit on a court's
ability to review an illegal sentence; 'it may be corrected at any time before it is
completed.'" State v. Jones, 478 N.J. Super. 532, 540 (App. Div. 2024) (quoting
Murray, 162 N.J. at 247). Accordingly, a PCR petition based on an illegal
sentence is cognizable. R. 3:22-2(c). We review the legality of a sentence de
novo, and "[i]f a defendant's sentence is illegal, a reviewing court must remand
for resentencing." Jones, 478 N.J. Super. at 541 (quoting State v. Steingraber,
465 N.J. Super. 322, 327 (App. Div. 2020)).
The New Jersey Supreme Court has clarified that consecutive sentences
imposed without a statement of reasons are not illegal sentences and may not be
modified on PCR. Acevedo, 205 N.J. at 42. In that regard, the Court has
explained that "mere excessiveness of [a] sentence otherwise within authorized
limits, as distinct from illegality by reason of being beyond or not in accordance
with legal authorization, is not an appropriate ground of post-conviction relief
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and can only be raised on direct appeal from the conviction." Id. at 45-46(quoting State v. Clark, 65 N.J. 426, 436-37 (1974)).
Defendant's sentence imposed at the resentencing on I-1303 was not
illegal. On the first-degree robbery conviction, defendant was sentenced to
sixteen years in prison, which was within the established sentencing range for a
first-degree crime under the Code. See N.J.S.A. 2C:43-6(a)(1) (stating that a
conviction for a crime of the first degree can result in a prison term "between
[ten] years and [twenty] years").
At the time of defendant's resentencing on I-1303, the issue of the
consecutive sentences was not before the court. Defendant was resentenced on
the convictions under I-1303 in April 2009. At that time, his appeal for the
convictions under I-1268 and I-1269 was still pending. He filed his appeal of
those two convictions in February 2007, and we did not rule on that appeal until
December 2009. See State v. Black, No. A-3336-06 (App. Div. Dec. 24, 2009).
Moreover, defendant did not raise a challenge to the consecutive sentences in
his direct appeal of the sentence under I-1303 or the appeal of the resentence.
In his direct appeals of his sentences under I-1268 and I-1269, defendant also
did not argue that the sentencing court had not used the proper procedures in
imposing consecutive sentences. Instead, defendant contended that the
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sentences were excessive. Accordingly, defendant is now procedurally barred
from seeking to challenge his consecutive sentences.
Defendant argues that it would be fundamentally unfair not to allow him
to challenge the consecutive sentences because he contends that no court has
ever considered the consecutive sentences on a comprehensive basis. He cites
State v. Hannah, 248 N.J. 148 (2021) and asserts that, irrespective of other court
rules governing PCR proceedings, our court retains the power to correct his
sentence because it is fundamentally unjust.
That argument is not supported by the record. The same judge presided
over defendant's two trials. That same judge then sentenced defendant on all his
convictions under I-1303, I-1268, and I-1269. Defendant was first sentenced on
his convictions under I-1303. When imposing that sentence in June 2006, the
court did not need to address whether the sentences should run consecutive
because defendant had not yet been sentenced on the convictions for I-1268 and
I-1269.
Defendant was sentenced for the convictions under I-1268 and I-1269 in
September 2006. At that sentencing, the court did address the consecutive
sentencing issue and ordered that the sentences for the three separate robberies
should be served consecutively. A review of the sentencing transcript confirms
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that the court understood and adequately explained why the three sentences were
being run consecutively and why the overall sentences were fair and appropriate.
Defendant’s reliance on State v. Hannah is misplaced. See Hannah, 248
N.J. at 178. In Hannah, the New Jersey Supreme Court recognized that "our
[rules] governing post-conviction relief petitions and proceedings do not render
our courts 'powerless to correct a fundamental injustice.'" Ibid. (quoting State
v. Nash, 212 N.J. 518, 547 (2013)). The Court then explained that a fundamental
injustice occurs "when the judicial system has denied a 'defendant with fair
proceedings leading to a just outcome.'" Hannah, 248 N.J. at 179 (quoting Nash,
212 N.J. at 546). A fundamental injustice was found in Hannah because "critical
evidence was withheld from the jury that supported [Hannah's] third-party-guilt
defense." Hannah, 248 N.J. at 155.
Here, defendant has not shown that a fundamental injustice occurred. As
stated above, defendant's consecutive sentences were logically explained by the
sentencing judge and have been repeatedly upheld on appeal.
B. The Claims of Ineffective Assistance of Counsel.
The second PCR court did not conduct an evidentiary hearing on
defendant's second PCR petition. Accordingly, we review the denial of the
petition de novo. State v. Harris, 181 N.J. 391, 420-21 (2004); State v.
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Lawrence, 463 N.J. Super. 518, 522 (App. Div. 2020). The PCR court's decision
to proceed without an evidentiary hearing is reviewed for an abuse of discretion.
State v. Vanness, 474 N.J. Super. 609, 623 (App. Div. 2023) (citing State v.
Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013)).
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy a two-prong test: (1) "counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment," and (2) "the deficient performance prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,
58 (1987) (adopting the two-prong Strickland test in New Jersey). To be entitled
to an evidentiary hearing on an ineffective assistance of counsel claim, a
petitioner must make a prima facie showing of ineffective assistance of counsel.
State v. Porter, 216 N.J. 343, 355 (2013); R. 3:22-10(b).
Defendant makes two ineffective assistance of counsel arguments: one
related to the proceedings concerning I-1303, and the second related to the
proceedings concerning I-1268 and I-1269. Concerning I-1303, defendant
contends that his counsel at resentencing was ineffective in failing to argue for
a concurrent sentence and that his PCR counsel for his first petition was
ineffective in failing to raise the consecutive sentences issue. Regarding I-1268
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and I-1269, defendant argues that his appellate counsel was ineffective in failing
to raise the consecutive sentences issue and that his PCR counsel was also
ineffective in failing to raise that issue.
We reject those arguments for two reasons. First, all the arguments raised
in defendant's second PCR petitions are time-barred. Rule 3:22-4(b) states that
a second or subsequent PCR petition "shall be dismissed unless" it alleges either:
(1) "that the petition relies on a new rule of constitutional law, made retroactive
to defendant's petition by the United States Supreme Court or the Supreme Court
of New Jersey, that was unavailable during the pendency of any prior
proceedings"; (2) "that the factual predicate for the relief sought could not have
been discovered earlier through the exercise of reasonable diligence"; or (3)
"that the petition alleges a prima facie case of ineffective assistance of counsel
that represented the defendant on the first or subsequent application for post-
conviction relief."
The second or subsequent PCR petition must also be timely under Rule
3:22-12(a)(2), which states that "no second or subsequent petition shall be filed
more than one year after the latest of" either the recognition of the constitutional
right, the date on which the factual predicate for relief was discovered, or the
date of the denial of the first or subsequent PCR petition in which counsel was
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alleged to be ineffective. This time limit is not tolled by federal habeas corpus
proceedings. See State v. Milne, 178 N.J. 486, 494 (2004) (explaining that "a
defendant's pursuit of federal review ordinarily would not extend the time frame
within which to file a PCR petition in State court"). Moreover, there is no
provision for relaxing this time limit: "the late filing of a second or subsequent
PCR petition [cannot] be excused in the same manner as the late filing of a first
PCR petition." State v. Jackson, 454 N.J. Super. 284, 293 (App. Div. 2018).
We denied defendant's appeals of his first PCR petitions in May 2016. It
was over four years later, in August 2020, that defendant moved to correct his
alleged illegal sentence under I-1268 and I-1269. It was even later, in November
2021, when defendant moved to correct his alleged illegal sentence on the
remand related to I-1303. Those motions were all filed well beyond the one-
year denial of defendant's first PCR petitions and are therefore all time-barred.
Even if we were to address the substance of defendant's contentions for
ineffective assistance of counsel, as raised in his second set of PCR petitions,
they lack merit. For the reasons we have already explained in discussing his
sentences, defendant cannot show prejudice because he has no substantive basis
to challenge his consecutive sentences. Defendant was convicted of three
separate robberies, at three separate locations, involving three separate victims.
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One of the victims was shot. The sentencing courts considered the separate
nature of the crimes, and explained why the sentences were being run
consecutively. Defendant has been afforded six appellate reviews of his ten
convictions and sentences. In none of those appeals has defendant shown a basis
for vacating the consecutive sentences.
Affirmed.
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