NOT FOR PUBLICATION WITHOUT THE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-1057-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES CLAUSELL, a/k/a
JAMES DOUGLAS CLAUSELL,
Defendant-Appellant.
Submitted May 10, 2017 – Decided May 30, 2017
Before Judges Carroll and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 95-08-0512.
James Clausell, appellant pro se.
Robert D. Bernardi, Burlington County
Prosecutor, attorney for respondent (Jennifer
B. Paszkiewicz, Assistant Prosecutor, of
counsel and on the brief; Linda Rinaldi, Legal
Assistant, on the brief).
PER CURIAM
Defendant James Clausell is presently serving a sentence of
life imprisonment, which was imposed following his 1996 murder
conviction. In this appeal, he challenges the trial court's
September 8, 2015 denial of his motion for an updated presentence
report. We affirm.
We briefly recount the lengthy procedural history of this
case. Following a 1986 jury trial, defendant was convicted of
capital murder and related offenses in connection with the 1984
shooting death of Edward Atwood at the front door of the victim's
Willingboro home. During the penalty phase of the trial, the jury
unanimously found the aggravating factors outweighed the
mitigating factors beyond a reasonable doubt, and defendant was
sentenced to death. Defendant appealed to the New Jersey Supreme
Court as of right. In 1990, the Court reversed defendant's
capital-murder conviction and remanded the case for a new trial
because the trial court's jury instruction regarding knowing or
purposeful murder was deficient. State v. Clausell, 121 N.J. 298,
313-14 (1990).
Defendant was retried from December 4, 1995, to January 19,
1996, following which a jury convicted him of first-degree murder,
three counts of aggravated assault, and two weapons related
offenses. Defendant was found not guilty of capital murder, and,
therefore, was not subject to the death penalty because the jury
concluded defendant did not knowingly or purposely cause Atwood's
death, but instead intended to cause only serious bodily injury
likely to result in death. On February 23, 1996, defendant was
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sentenced to life imprisonment (with a thirty-year period of parole
ineligibility) on the murder conviction, and concurrent eighteen-
month jail terms (with eighteen-month periods of parole
ineligibility) on the three aggravated assault convictions, to run
consecutive to the sentence imposed on the murder charge.
Defendant appealed, and we affirmed his convictions in an
unpublished opinion. State v. Clausell, No. A-4947-95 (App. Div.
Apr. 1, 1999), certif. denied, 161 N.J. 331 (1999).
Defendant filed a petition for post-conviction relief (PCR)
on September 24, 1999, in which he claimed that newly-discovered
evidence proved his co-defendant was the shooter. The PCR judge
denied the petition, and we affirmed. State v. Clausell, No. A-
5681-01 (App. Div. Dec. 10, 2003), certif. denied, 180 N.J. 151
(2004).
Defendant thereafter filed a petition for a writ of habeas
corpus in the United States District Court for the District of New
Jersey pursuant to 28 U.S.C. § 2254, asserting numerous
constitutional and other violations during his retrial. Defendant
argued, inter alia, that trial counsel had been ineffective,
particularly by failing to raise a Batson objection1 to the State's
peremptory challenges during jury selection. The District Court
1
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d
69 (1986).
3 A-1057-15T3
denied the habeas petition. Clausell v. Sherrer, No. 04-3857,
2006 U.S. Dist. LEXIS 73607 (D.N.J. Sept. 29, 2006), aff'd, 594
F.3d 191 (3d Cir.), cert. denied, 562 U.S. 871, 131 S. Ct. 172,
178 L. Ed. 2d 103 (2010).
On July 18, 2011, defendant filed a second PCR petition,
again claiming newly discovered evidence. The PCR judge denied
the petition because it was time-barred and, even if it was not,
it lacked merit. We again affirmed in an unpublished opinion.
State v. Clausell, No. A-4827-11 (App. Div. Apr. 22, 2014), certif.
denied, 220 N.J. 269 (2015).
On or about June 15, 2015, defendant filed a second federal
habeas petition challenging his conviction and sentence, once more
premised on claims of alleged newly discovered evidence. Because
defendant did not seek or obtain authorization from the Court of
Appeals to file a "second or successive petition," the District
Court dismissed the petition for lack of jurisdiction pursuant to
28 U.S.C. § 2244(b)(3)(A) and 28 U.S.C. § 2253(c). Clausell v.
Bonds, No. 15-4066, 2016 U.S. Dist. LEXIS 16125 (D.N.J. Feb. 10,
2016).
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In or about August 2015, defendant filed a motion in the
trial court for an updated presentence report.2 The court denied
the motion on September 8, 2015, reasoning that it was "not
currently required to order an updated report pursuant to [Rule]
3:21-2 and [N.J.S.A.] 2C:44-6." This appeal followed.
Defendant argues in a single point:
[THE] TRIAL COURT FAILED TO UPDATE [THE]
PRESENTENCE REPORT [THAT] TRANSMITTED TO THE
INSTITUTION DIFFERENT FACTS AND CIRCUMSTANCES
OF [THE] OFFENSE THAN ADDUCED ON RETRIAL
[THAT] ADVERSELY AFFECT CLASSIFICATION AND
PAROLE STATUS.
Having considered defendant's argument in light of the record and
applicable legal standards, we find it lacks sufficient merit to
warrant extended discussion. R. 2:11-3(e)(2). We add only the
following comments.
Rule 3:21-2(a) provides that "[b]efore the imposition of a
sentence . . . court support staff shall make a presentence
investigation in accordance with N.J.S.A. 2C:44-6 and shall report
to the court." (Emphasis added). If the court imposes a custodial
sentence, it must then "transmit a copy of the presentence report
2
It appears that defendant failed to serve this motion on the
State. He has also failed to include it in his appendix, contrary
to R. 2:6-1(a)(1)(I) (requiring the appendix to contain those
parts of the record "essential to the proper consideration of the
issues[.]").
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. . . to the person in charge of the institution to which the
defendant has been committed." R. 3:21-2(c).
Similarly, N.J.S.A. 2C:44-6a mandates that a "court shall not
impose sentence without first ordering a presentence investigation
of the defendant[.]" N.J.S.A. 2C:44-6b delineates the contents
of the presentence report and requires that it include, among
other things, "an analysis of the circumstances attending the
commission of the offense[.]" Consistent with Rule 3:21-2(c), the
statute permits disclosure of the report to correctional
authorities if the defendant receives a custodial sentence.
N.J.S.A. 2C:44-6d.
In his brief, defendant asserts that he "filed [his] motion
for an updated [p]resentence [r]eport after interviews with
Department of Corrections staff revealed the utilization of facts
and circumstances from [the first] trial (1986) [that were] not
reflective of facts adduced on retrial (1995) and would be
considered by parole." However, defendant cites no controlling
statute, court rule, or case law that would require the trial
court to order an updated presentence report nearly twenty years
after his conviction. To the contrary, as one commentator has
expressly noted, "[i]nformation in [presentence] reports
(especially 'Official Version of Crime') is accepted as true
without question and classification and parole decisions may be
6 A-1057-15T3
based on it. Errors should be corrected in the report before this
transmittal." Cannel, New Jersey Criminal Code Annotated, comment
5 on N.J.S.A. 2C:44-6d (2017) (emphasis added).
Defendant's reliance on State v. Mance, 300 N.J. Super. 37
(App. Div. 1997), is misplaced. In that case, defendant Mance was
convicted of four counts of aggravated assault on several
corrections officers during a 1990 riot at the New Jersey State
Prison. Id. at 43-44. Although we affirmed defendant's
convictions, we reversed and remanded for resentencing because the
trial court relied on a presentence report that was created in
1977 with respect to an unrelated crime defendant committed in
1976. Id. at 65.
In contrast, in the present case, the trial court relied on
an updated presentence report dated February 13, 1996. The
presentence report appended and supplemented the earlier 1986
presentence report. Hence, it fully comported with Rule 3:21-2
and N.J.S.A. 2C:44-6 and, unlike Mance, "was [n]either irrelevant
[n]or set forth material which was outdated." Ibid. If the
information in the presentence report was inaccurate, as defendant
now contends, he was free to object to it at sentencing, or raise
the issue on direct appeal. There is no indication in the record
that he did so, nor is the court obliged to order an updated
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presentence report to correct any alleged inaccuracies at this
belated stage.
Affirmed.
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