                        NOT FOR PUBLICATION WITHOUT THE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

                                      2                               A-1057-15T3
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).




                                4                           A-1057-15T3
     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[.]").

                                  5                           A-1057-15T3
. . . 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



                                         7                            A-1057-15T3
presentence report to correct any alleged inaccuracies at this

belated stage.

    Affirmed.




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