STATE OF NEW JERSEY VS. DALE BURNETT(81-02-0211, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1208-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DALE BURNETT,
Defendant-Appellant.
____________________________________
Submitted May 2, 2017 – Decided August 2, 2017
Before Judges Ostrer and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
81-02-0211.
Dale Burnett, appellant pro se.
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Laura Sunyak,
Assistant Prosecutor, on the brief).
PER CURIAM
In 1982, defendant Dale Burnett was convicted of murder and
was sentenced to an extended term of life imprisonment with twenty-
five years of parole ineligibility. He appeals the June 24, 2015
dismissal without prejudice of his motion to correct an illegal
sentence.
I.
Defendant murdered a woman in Mercer County on September 7,
1980 (the 1980 murder). Before defendant was apprehended, he
committed a second murder in Burlington County on January 12, 1981
(the 1981 murder).
On February 12, 1981, Mercer County Indictment 211-81 charged
defendant with the 1980 murder under N.J.S.A. 2C:11-3. A jury
found defendant guilty of the 1980 murder on February 10, 1982.
Meanwhile, on July 29, 1981, defendant was sentenced for the
1981 murder to life imprisonment with a seventeen-year period of
parole ineligibility, and for first-degree robbery, N.J.S.A.
2C:15-1, to a concurrent term of fifteen years' in prison.
Prior to sentencing on the 1980 murder conviction, the State
filed a motion for an extended term sentence pursuant to N.J.S.A
2C:44-3(a). However, the trial court instead invoked N.J.S.A.
2C:43-7 as the basis for an extended term. On April 23, 1982, the
court sentenced defendant to life imprisonment with twenty-five
years of parole ineligibility, to be served consecutively to any
offense defendant was serving at that time.
On March 17, 2015, defendant filed a pro se motion in the Law
Division to correct an illegal sentence, arguing the trial court
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was prohibited from considering any conviction entered prior to
the 1980 murder conviction in ruling on the N.J.S.A. 2C:44-3
motion. Counsel was appointed to represent defendant. On June
24, 2015, the Law Division dismissed defendant's motion, without
prejudice, because "Defendant failed to file a brief."
Defendant filed an appeal, which we dismissed because
defendant "failed to file a timely brief." We granted defendant's
request to vacate the dismissal of his appeal. In his appellate
brief, defendant argues:
DUE TO COUNSEL'S INEFFECTIVE REPRESENTATION,
WHICH CAUSED APPELLANT'S MOTION TO BE
DISMISSED, HE IS ENTITLED TO A REMAND AND A
NEW HEARING ON THE MERITS OF HIS CLAIMS.
II.
We note at the outset defendant's motion was dismissed without
prejudice. Thus, in lieu of appeal, defendant could have filed a
new motion with a brief, or sought to reinstate his old motion
with a brief. "A motion may be filed and an order may be entered
at any time" to correct an illegal sentence. R. 3:21-10(b)(5);
see State v. Schubert, 212 N.J. 295, 309 (2012). However, because
defendant filed a brief before us, and in the interest of
efficiency, we choose to address defendant's appeal.
Defendant claims his counsel was ineffective for failing to
file a brief in support of his pro se motion. To show ineffective
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assistance of counsel, defendant must meet the two-pronged test
of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), adopted in State v. Fritz, 105 N.J. 42 (1987).
"The defendant must demonstrate first that counsel's performance
was deficient, i.e., that 'counsel made errors so serious that
counsel was not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment.'" State v. Parker, 212 N.J.
269, 279 (2012) (citation omitted). Second, "a defendant must
also establish that the ineffectiveness of his attorney prejudiced
his defense." Ibid. "The defendant must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S.
Ct. at 2068, 80 L. Ed. 2d at 698).
Assuming defendant had a right to effective counsel on his
motion to correct an illegal sentence, we reject his claim because
his motion lacked merit. "It is not ineffective assistance of
counsel for defense counsel not to file a meritless motion," so
"we need not address defendant's ineffective assistance of counsel
argument." State v. O'Neal, 190 N.J. 601, 619 (2007). Defendant
cannot show his motion to correct his sentence would have been
meritorious even if counsel filed a supporting brief. It certainly
would not have changed the result of the proceedings. "The failure
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to raise unsuccessful legal arguments does not constitute
ineffective assistance of counsel." State v. Worlock, 117 N.J.
596, 625 (1990). Defendant's motion to correct his sentence was
meritless because defendant's life sentence was not illegal.
"[A]n illegal sentence is one that 'exceeds the maximum
penalty provided in the [New Jersey Criminal] Code for a particular
offense' or a sentence 'not imposed in accordance with law.'"
State v. Acevedo, 205 N.J. 40, 45 (2011); see also Schubert, supra,
212 N.J. at 308. Whether defendant's sentence is an illegal
sentence is an issue of law; "our review is therefore de novo."
State v. Drake, 444 N.J. Super. 265, 271 (App. Div.) (quoting
State v. Olivero, 221 N.J. 632, 638 (2015)), certif. denied, 226
N.J. 213 (2016). We must hew to that standard of review.
Defendant claims his sentence for the 1980 murder conviction
was illegal because the sentencing court relied upon his 1981
murder conviction, which was on direct appeal at the time, to
impose an extended term sentence under N.J.S.A. 2C:44-3. In fact,
the sentencing court chose to base the enhanced sentence not on
N.J.S.A. 2C:44-3 but on N.J.S.A. 2C:43-7.
At the time of defendant's crime, N.J.S.A. 2C:43-7 provided
that "[i]n the cases designated in section 2C:44-3 or 2C:11-3," a
person convicted of murder "may be sentenced to an extended term"
of "between 30 years and life imprisonment," with "a term of 25
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years during which time the defendant shall not be eligible for
parole where the sentence imposed was life imprisonment." State
v. Maguire, 84 N.J. 508, 521-22 (1980) (emphasis added) (quoting
N.J.S.A. 2C:43-7(a)(1), (b) (1979)). In Maguire, our Supreme
Court held that under N.J.S.A. 2C:43-7 (1979), "an extended term
of life imprisonment is an available punishment in murder cases
without separate proof of the enhancement criteria in section
2C:44-3." Maguire, supra, 84 N.J. at 528. The Court ruled a life
sentence for murder could be imposed "where the aggravating
circumstances substantially outweigh the mitigating
circumstances." Id. at 533.
Here, the sentencing court imposed an extended term under
N.J.S.A. 2C:43-7 and Maguire because it found seven aggravating
factors under N.J.S.A 2C:44-1: (1) the heinous, cruel, and depraved
manner in which the offense was committed, (2) defendant's
knowledge that the victim was particularly vulnerable, (3) the
probability defendant would commit another offense, (4) a lesser
sentence would deprecate the seriousness of the offense, (5) the
need to deter defendant and others, (6) the need to protect society
from defendant's repeated offenses, and (7) the seriousness of
defendant's prior record. The court found no mitigating
circumstances. Thus, the trial court properly sentenced defendant
to an extended term for his 1980 murder conviction under N.J.S.A.
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2C:43-7(a). The court did not need to rely on defendant's prior
convictions to impose a life sentence.
In any event, it would not have been improper for the
sentencing judge to base the extended sentence on the 1981 murder
conviction under N.J.S.A. 2C:44-3(a). "The persistent offender
statute, N.J.S.A. 2C:44-3(a), grants the sentencing court
discretion to impose an extended sentence when the statutory
prerequisites for an extended-term sentence are present." State
v. Pierce, 188 N.J. 155, 161 (2006). One prerequisite for a
"persistent offender" is that he "has been previously convicted
on at least two separate occasions of two crimes." Maguire, supra,84 N.J. at 517 n.8 (quoting N.J.S.A. 2C:44-3). The statute looks
to the date of conviction, not the date of the offense:
[The] chronology of offenses for sentence
enhancement of a "persistent offender" under
N.J.S.A. 2C:44-3a is not important. The
sequence of convictions controls. Thus, if a
conviction on a previous offense occurs prior
to the date of sentencing on the "subsequent"
offense then before the court, the "previous
offense" requirement has been met.
[State v. Haliski, 140 N.J. 1, 11 (1995)
(citing State v. Mangrella, 214 N.J. Super.
437, 445-46 (App. Div. 1986), certif. denied,
107 N.J. 127 (1987)); accord State v. Cook,
330 N.J. Super. 395, 421-22 (App. Div.),
certif. denied, 165 N.J. 486 (2000).]
Defendant claimed that because his 1981 murder conviction was
on appeal at the time of his sentencing for the 1980 murder, that
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conviction could not be a basis for an extended sentence under
N.J.S.A. 2C:44-3. To support his claim, defendant cited Mangrella,
which "stated that the trial court could consider any judgment of
conviction entered prior to sentencing but restricted
consideration to those judgments not pending direct appeal or
subject to a right of direct appeal." Cook, supra, 330 N.J. Super.
at 422 (citing Mangrella, supra, 214 N.J. Super. at 445-46).
However, we have ruled that, "[r]ejecting that part of Mangrella
dealing with the issue, the Haliski Court held that a criminal
defendant cannot escape the statutory higher penalty simply
because a prior conviction is pending on appeal." Ibid.Therefore, when considering whether "a defendant is a persistent
offender under N.J.S.A. 2C:44-3(a), a sentencing judge may
consider convictions entered after the defendant committed the
instant crime even when there is an appeal pending or right of
direct appeal." Ibid.Accordingly, defendant has not demonstrated a valid basis for
his motion to correct an illegal sentence, and cannot establish a
claim of ineffective assistance of counsel.
Affirmed.
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