STATE OF NEW JERSEY VS. DAVID BATTLE (96-03-0336 AND 97-09-3979, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-5747-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID BATTLE,

Defendant-Appellant.
____________________________

Submitted February 5, 2019 – Decided February 20, 2019

Before Judges Fisher and Geiger.

On appeal from Superior Court of New Jersey, Essex
County, Indictment Nos. 96-03-0336 and 97-09-3979.

David Battle, appellant pro se.

Theodore Stevens, II, Acting Essex County Prosecutor,
attorney for respondent (Frank J. Ducoat, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).

PER CURIAM
 Defendant David Battle appeals from a July 25, 2018 order denying his

motion to correct an illegal sentence. We affirm.

Defendant's underlying convictions, sentences, and direct appeals were

summarized in our prior opinion.

Defendant was charged on September 25, 1997, in a
three-count indictment with first-degree murder,
N.J.S.A. 2C:11-3(a)(1), (2), (First Count); possession
of a handgun without a permit, N.J.S.A. 2C:39-5b
(Second Count); and possession of a handgun with an
intent to use it unlawfully against another, N.J.S.A.
2C:39-4a (Third Count). In a separate indictment,
defendant was charged with possession of a handgun by
a person with a prior conviction. Defendant was
convicted on May 1, 1998, of all three charges in the
first indictment. After a separate trial on the second
indictment, defendant was also convicted of that
charge.

Defendant was sentenced on May 27, 1998, at
which time the court merged the N.J.S.A. 2C:39-4a
conviction with the murder conviction and sentenced
defendant to a term of life with a thirty-year term of
parole ineligibility. He was given a concurrent
sentence of five years with a 50% parole disqualifier on
the conviction of possession of a handgun without a
permit. The judge sentenced defendant to an extended
term on the possession of a weapon by a convicted felon
for a term of twenty years with a ten-year period of
parole ineligibility. Defendant's convictions and
sentences were affirmed on appeal, Docket No. A-
6720-97, and his petition for certification was
thereafter denied. State v. Battle, 163 N.J. 80 (2000).

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 [State v. Battle, No. A-2917-04 (App. Div. 2006) (slip
op. at 1-2), certif. denied, 189 N.J. 426 (2007).]

Defendant has filed a succession of petitions and motions for post-

conviction relief (PCR). Our prior opinion outlined the grounds raised in his

first three PCR petitions.

Defendant filed his first petition for post-
conviction relief on March 20, 2001, claiming that the
assistance provided by his counsel was ineffective on
the ground that counsel did not adequately investigate
his alibi and file a notice of alibi, nor did the attorney
call witnesses who allegedly would support his theory
of the case. Defendant also alleged that his counsel’s
assistance was ineffective because of cumulative
errors. In a subsequent petition defendant sought a new
trial based on an alleged recantation by the eyewitness
to the murder. In the third PCR petition, defendant
sought access to the victim’s clothing to test for
gunshot residue. All relief was denied by the PCR judge
who had presided over the trial and imposed sentence.

[Id. at 2-3.]

Defendant's fourth application for PCR involved three motions. The first

sought PCR discovery to examine the victim's clothing for gun powder residue.

The second related to an alleged recantation by Valerie Hicks of her trial

testimony during an interview with public defender investigators. The third was

based on alleged ineffective assistance of trial counsel. The PCR court denied

all three motions. Defendant appealed from those rulings, arguing the PCR court

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erred by denying his motions without an evidentiary hearing. We affirmed ,

finding no merit in any of defendant's arguments. Id. at 14.

Next, defendant filed a petition for a writ of habeas corpus in the United

States District Court for the District of New Jersey. District Judge Susan D.

Wigenton denied the petition and defendant's request for an evidentiary hearing,

and declined to issue a certificate of appealability. Battle v. Ricci, Civ. No. 07-

1160 (SDW) (D.N.J. Feb. 6, 2008). The United States Court of Appeals for the

Third Circuit also denied a certificate of appealability. Battle v. Ricci, No. 08-

1613 (3d Cir. July 10, 2008).

Defendant then filed the present motion to correct an illegal sentence,

raising the following grounds for relief: (1) the sentence is illegal because it

imposed two extended terms; (2) the sentencing judge erred by double counting

aggravating factor nine ("[t]he need to deter defendant and others from violating

the law"), N.J.S.A. 2C:44-1(a)(9); and (3) the sentencing judge committed plain

error by repeating a quote from former President John F. Kennedy's inaugural

speech that had been included in the victim impact statement by the victim's

relative at the sentencing hearing ("Do not ask what your country can do for you

but what you can do for your country.").

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 In a written opinion, Judge Michael A. Petrolle first addressed defendant's

argument that the sentencing judge erred by imposing two extended sentences

on the murder and certain persons weapons counts. Recognizing that N.J.S.A.

2C:44-5(a)(2) prohibited imposing more than one extended sentence, the judge

rejected defendant's argument, determining defendant's sentence of life with

thirty years of parole ineligibility on the murder count is an ordinary sentence,

not an extended sentence.

The judge next addressed defendant's claim that the sentencing judge

double counted aggravating factor nine by applying it to both the murder and

certain persons weapons counts. The judge rejected defendant's claim, stating:

"Inasmuch as they were simultaneous but separate sentencings for separate

offenses, the application [of the aggravating factor] in each sentencing was not

double counting." Judge Petrolle also noted that, on direct appeal, we stated:

"The trial court properly identified and balanced the aggravating factors against

the non-existent mitigating factors."

With regard to the sentencing judge's reference to the quotation from

President Kennedy's inauguration speech invoked by the relative of the victim

at the sentencing hearing, the judge rejected defendant's argument, noting that

we did not find any judicial misconduct or abuse of discretion on direct appeal.

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 The judge further found the claims raised by defendant did not warrant an

evidentiary hearing or the appointment of counsel, because the facts raised by

defendant in support of his motion "are all a matter of procedure in the record

not susceptible to dispute." The judge determined there were no "material issues

of disputed fact that cannot be resolved by reference to the existing record." He

concluded no "substantial issue of fact or law requires the assignment of

counsel" and the law invoked by defendant "is express and clear." Thus,

defendant "could not reasonably be expected to be aided in any way by

appointment of [PCR] counsel" or by conducting an evidentiary hearing.

The judge denied defendant's motion. This appeal followed. Defendant

raises the following issues:

POINT I

THE LOWER COURT'S ORDER DENYING
DEFENDANT'S MOTION TO CORRECT AN
ILLEGAL SENTENCE WAS ERRONEOUS AND
MISPLACED, FURTHER VIOLATING HIS DUE
PROCESS UNDER THE XIV AMENDMENT. (Not
raised below).

POINT II

THE LOWER COURT ERRONEOUSLY DENIED
DEFENDANT'S "DOUBLE-COUNTING" CLAIM; IN
LIGHT OF OVERWHELMING FACTS, TO THE
CONTRARY, IN VIOLATION OF THE XIV

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 AMENDMENT DUE PROCESS OF THE
CONSTITUTION.

POINT III

THE SENTENCING LOWER COURT, IN IT'S
OPINION TOTALLY DISREGARDED
DEFENDANT'S CLAIM OF JUDICIAL MIS-
CONDUCT; IN VIOLATION OF THE XIV
AMENDMENT DUE PROCESS OF THE
CONSTITUTION.

After reviewing the record and applicable principles of law, we have

concluded there is no merit to any of these issues and affirm substantially for

the reasons expressed by Judge Petrolle in his cogent written decision. We add

only the following brief comments.

Defendant argues he received two extended sentences in violation of

N.J.S.A. 2C:44-5(a)(2). While defendant received an extended term for the

certain persons weapons offense, he received an ordinary term of thirty years to

life subject to a thirty-year period of parole ineligibility on his murder

conviction pursuant to N.J.S.A. 2C:44-3(b)(1). A life sentence for murder is an

ordinary term, not an extended term. State v. Serrone, 95 N.J. 23, 25 (1983).

Defendant further argues the sentencing judge engaged in impermissible

double counting of aggravating factor nine. We disagree. Application of

aggravating factor nine to both the murder and certain persons weapons

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convictions did not constitute double counting. Recognizing the need to deter

defendant and others from violating the law did not amount to considering an

element of either offense as an aggravating factor.

Defendant also argues the sentencing judge violated Canon 2, Rule 2.2 (a

judge "shall not permit family, social, political, financial or other relationships

or interests to influence their judicial conduct or judgment"), Rule 2.3(A) (a

judge "shall not lend the prestige of judicial office to advance the personal or

economic interests of the judge or others, or allow others to do so"), Rule 2.3(B)

(a judge "shall not convey or permit others to convey the impression that any

person or organization is in a position to influence the judge"), and Rule 2.4 (a

judge shall not appear as a character witness) of the Code of Judicial Conduct

by repeating the quotation from President Kennedy's inaugural speech that the

victim's relative had invoked during the sentencing hearing. We again disagree.

The sentencing judge's fleeting reference to President Kennedy's iconic remark,

which has become part of the lexicon of this Nation, did not violate any of the

those rules or render the sentence illegal.

Affirmed.

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