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NOT FOR PUBLICATION WITHOUT THE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.

6 A-1208-15T4
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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