                                NOT FOR PUBLICATION WITHOUT THE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-0360-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAHMIN DAMON MUSE, a/k/a
JAMEEL HAWKINS,
JAHMIR R. MUSE,
JAY MUSER, and GERM MUSE,

     Defendant-Appellant.
_______________________________

                   Submitted May 28, 2020 – Decided July 21, 2020

                   Before Judges Suter and DeAlmeida.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 05-03-0449.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Richard Sparaco, Designated Counsel, on the
                   brief).

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Michele C. Buckley, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).
             Appellant filed a pro se supplemental brief.

PER CURIAM

      Petitioner Jahmin Muse (defendant) appeals the denial on July 25, 2018

of his third petition for post-conviction relief (PCR). For reasons that follow,

we affirm.

                                         I.

      A jury convicted defendant in 2005 of eight counts charging him with

intent to distribute heroin and cocaine. 1 He was sentenced to an extended term

as a persistent offender to an aggregate term of life in prison, plus fifteen years,

subject to twenty-seven and one-half years without parole.

      Defendant appealed in 2007. We affirmed his convictions but remanded

for resentencing. State v. Muse (Muse I), No. A-3741-05 (App. Div. February


1
   The indictment charged: third-degree possession of cocaine (count one),
N.J.S.A. 2C:35-10(a)(1); first-degree possession of cocaine with intent to
distribute (count two), N.J.S.A. 2C:35-5(a)(1) & N.J.S.A. 2C:35-5(b)(1);
second-degree possession of cocaine with intent to distribute within 500 feet of
a public park (count three), N.J.S.A. 2C:35-7.1; third-degree possession of
heroin (count four), N.J.S.A. 2C:35-10(a)(1); third-degree possession of heroin
with intent to distribute (count five), N.J.S.A. 2C:35-5(a)(1) & N.J.S.A. 2C:35-
5(b)(3); second-degree possession of heroin with intent to distribute within 500
feet of a public park (count six), N.J.S.A. 2C:35-7.1; third-degree distribution
of heroin, (count seven), N.J.S.A. 2C:35-5(a) (1) & N.J.S.A. 2C:35-5(b)(3); and
second-degree distribution of heroin within 500 feet of a public park, (count
eight), N.J.S.A. 2C:35-7.1.
                                                                            A-0360-18T2
                                         2
26, 2007) (slip op. at 4-10). His petition for certification was denied. State v.

Muse, 192 N.J. 294 (2007). Defendant was resentenced to the same term.

      Defendant appealed his 2007 sentence as excessive. We vacated the

sentence as a "mistaken exercise of discretion" and remanded for resentencing.

State v. Muse (Muse III), No. A-4325-08 (App. Div. Feb. 22, 2010). He was

resentenced in 2011 to an aggregate term of fifty years incarceration with

twenty-two years of parole ineligibility.

      In 2013, defendant appealed his 2011 sentence, arguing that it was

"manifestly excessive." In 2015, we vacated the sentence because it was "based

on an erroneous understanding of the sentencing calculus" and was "manifestly

excessive, unduly punitive, and a mistaken exercise of discretion," and

remanded for resentencing. State v. Muse (Muse V), No. A-3625-11 (App. Div.

May 27, 2015) (slip op. at 7). Defendant was resentenced on September 17,

2015 to an aggregate term of forty-one years in prison with an eighteen-year

period of parole ineligibility.

      Defendant appealed his 2015 sentence as excessive. The case was heard

by the excessive sentence oral argument (ESOA) panel, Rule 2:9-11, and

remanded for resentencing. State v. Muse (Muse VI), No. A-0778-15 (App. Div.

April 5, 2016).


                                                                         A-0360-18T2
                                        3
      Defendant was resentenced on May 16, 2016 to an aggregate term of

thirty-five years imprisonment with a fifteen-year period of parole ineligibility.

Defendant appealed that sentence, but we affirmed it on October 18, 2016. State

v. Muse (Muse VII), No. A-4600-15 (App. Div. Oct. 18, 2016).               This is

defendant's current sentence. Defendant’s petition for certification was denied

on March 14, 2017. State v. Muse, 229 N.J. 598 (2017).

      Defendant also filed unsuccessful PCR petitions. In the first, the PCR

court denied relief on August 25, 2008. He appealed, but we affirmed. See State

v. Muse (Muse II), No. A-0707-08 (App. Div. July 21, 2010) (slip op. at 1). The

Supreme Court denied certification. State v. Muse, 205 N.J. 78 (2011).

      We affirmed denial of relief on defendant's second PCR. State v. Muse

(Muse IV), No. A-3118-12 (App. Div. Oct. 14, 2014).

      This appeal involves defendant's third PCR petition, filed on October 14,

2017. Defendant filed a pro se verified petition alleging ineffective assistance

of trial and appeals counsel. With respect to his trial counsel, he contended she

did not "argue against" his sentence under a mandatory extended term, that the

State did not request an extended term or that the judge did not take judicial

notice of community anxiety about him. His appeals counsel did not raise the

issues defendant listed in a letter, note that defendant had more than one witness,


                                                                           A-0360-18T2
                                        4
or argue against the extended term.            His PCR counsel submitted a legal

memorandum in May 2018 explaining defendant was denied effective assistance

of counsel at "the re-sentence date of September 17, 2015 when he was

represented by [counsel] and again on the appellate level."

      On July 28, 2018, the PCR court denied defendant's third PCR petition

without conducting an evidentiary hearing. In its written opinion, the court

found defendant's claim that his May 16, 2016 sentence was excessive was

procedurally barred by Rule 3:22-4(b), because "[t]his issue was raised on direct

appeal and rejected by the Appellate Division." The PCR court also determined

the claim of ineffective assistance was moot. Although defendant contended his

counsel was ineffective at the September 2015 sentencing date because she did

not "argue correctly on the point of his extended sentence," a new sentence was

imposed in May 2016, making any argument about the proper sentence moot.

      On appeal, defendant raises this issue:

            THE COURT ERRED IN DENYING AN
            EVIDENTIARY HEARING ON DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF.

                                     II.

      The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland


                                                                         A-0360-18T2
                                           5
v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State

v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-prong test of establishing

both that: (l) counsel's performance was deficient and he or she made errors that

were so egregious that counsel was not functioning effectively as guaranteed by

the Sixth Amendment to the United States Constitution; and (2) the defect in

performance prejudiced defendant's rights to a fair trial such that there exists a

"reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Strickland, 466 U.S. at 694.

      Defendant argues in his third PCR petition that his attorney provided

ineffective assistance of counsel at his September 17, 2015 sentencing because

she did not argue "that defendant was not being sentenced under a mandatory

extended term under State v. Brimage, 153 N.J. 1 (1998)[,] and that defendant's

sentence was patently illegal." Defendant maintains "the correct ineligibility

period should be [twenty-five] years and that if the court had to choose a half

way point it should be [twelve] years."

      The PCR court was correct to reject this argument. Whether the attorney

should have made this argument in 2015 is now moot because that sentence was

vacated in 2016, and defendant was re-sentenced. The resentence was affirmed


                                                                          A-0360-18T2
                                          6
on appeal. Defendant cannot show he was prejudiced when the 2015 sentence

was corrected.

      Under Rule 3:22-4(a), any matter that could have been raised in any prior

proceeding or on any appeal and was not, cannot be a ground for relief, unless

it could not reasonably have been raised before, would result in a fundamental

injustice, or unless "denial of relief would be contrary to a new rule of

constitutional law under the Constitution of the United States or the State of

New Jersey." The 2017 third PCR petition argues the same claim (excessive

sentence) that we rejected on October 18, 2016. See Muse VII. This PCR

petition is not a substitute for direct appeal nor a vehicle to relitigate the

underlying merits. State v. Preciose, 129 N.J. 451, 459 (1992). Thus, because

defendant appealed his sentence and was denied, this cannot be the basis for a

new PCR petition and properly was denied.

      To the extent defendant may be raising an excessive sentencing argument

about the 2016 sentence, that sentence was appealed and affirmed. Nor was the

sentence illegal.   "[A]n illegal sentence is one that 'exceeds the maximum

penalty provided in the Code for a particular offense' or a sentence 'not imposed

in accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting

State v. Murray, 162 N.J. 240, 247 (2000)). As a persistent offender under


                                                                         A-0360-18T2
                                       7
N.J.S.A. 2C:44-3(a), the thirty-five-year sentence was in the midrange between

twenty years and life, which was consistent with N.J.S.A. 2C:43-7(a)(2), and the

fifteen-year period of ineligibility was not more than half, which was consistent

with N.J.S.A. 2C:43-7(b).

      Defendant did not establish a prima facie case of ineffective assistance of

counsel because none of the claims showed a deficiency in counsel's

performance or resulting prejudice. As such, the trial court was not required to

conduct an evidentiary hearing. Preciose, 129 N.J. at 462.

      Affirmed.




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