                                NOT FOR PUBLICATION WITHOUT THE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-2714-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LARRY JONES,

     Defendant-Appellant.
____________________________

                    Submitted May 8, 2019 – Decided May 30, 2019

                    Before Judges Currier and Mayer.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 85-06-0624.

                    Larry Jones, appellant pro se.

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Christopher W. Hsieh, Chief
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

          Defendant Larry Jones appeals from the denial of his sixth petition for

post-conviction relief (PCR). Defendant's arguments, with one exception, are
time-barred under Rule 3:22-12(a)(2). We, therefore, only address defendant's

contention that his sentence was illegal. Because the sentence was affirmed in

the direct appeal, State v. Jones, No. A-1776-86 (App. Div. May 19, 1989), and

we find his remaining arguments concerning his sentence meritless, we affirm.

      Defendant was convicted in 1986 of murder, N.J.S.A. 2C:11-3(a)(1)

and/or 2C:11-3(a)(2); felony murder, N.J.S.A. 2C:11-3(a); four counts of first-

degree robbery, N.J.S.A. 2C:15-1; four counts of kidnapping, N.J.S.A. 2C:13-

1(b)(1); unlawful possession of a handgun for unlawful purposes, N.J.S.A.

2C:39-4; and possession of a handgun without a permit, N.J.S.A. 2C:39-5(b).

      The jury declined to impose the death penalty. In 1986, defendant was

sentenced to a thirty-year term of incarceration without parole eligibility for the

murder conviction; four concurrent twenty-year sentences on the robbery

convictions, with a ten-year parole ineligibility period, to run consecutively to

the murder sentence; four concurrent thirty-year sentences on the kidnapping

convictions, with a fifteen-year parole ineligibility, to run consecutively to the

murder conviction; and a four-year concurrent term for possession of a weapon

without a permit. The sentences were consecutive to the prison time defendant

was already serving in another state.




                                                                           A-2714-17T4
                                        2
      Defendant appealed his convictions and sentence, presenting numerous

arguments, including a contention that the imposed sentence was "manifestly

excessive." Jones, slip op. at 3. In addressing that argument, we held: "Our

review of the record satisfies us that the sentence was within the guidelines of

State v. Yarbough, 100 N.J. 627, 644 (1985) . . . and did not constitute a mistaken

exercise of sentencing discretion." Id. at 13.

      Thereafter, defendant presented five PCR petitions; all were denied by the

trial court and affirmed by this court. 1 In the fifth petition, defendant contended

his trial, appellate, and first PCR counsel were ineffective for not recognizing

that his consecutive sentences were illegal. The PCR judge found defendant's

application was untimely under Rule 3:22-12 and procedurally barred under

Rule 3:22-4.    We affirmed, noting defendant "could have challenged his

sentence and [ineffective assistance claims] upon direct appeal or in any of his

four preceding PCR petitions." Jones, No. A-4973-08, slip op. at 4.

      In this PCR petition, defendant asserts errors in the jury instructions and

polling procedure of the jury, and presents a "[m]otion [t]o [c]orrect [a]n



1
  State v. Jones, No. A-5167-89 (App. Div. Mar. 26, 1992); State v. Jones, No.
A-6933-93 (App. Div. May 19, 1997); State v. Jones, No. A-1285-02 (App. Div.
May 2, 2003); State v. Jones, No. A-5307-02 (App. Div. Nov. 19, 2004); State
v. Jones, No. A-4973-08 (App. Div. Nov. 20, 2009).
                                                                            A-2714-17T4
                                         3
[i]llegal [s]entence [c]onviction." The trial judge found defendant's claims,

other than the illegal sentence assertion, were time barred as he did "not assert

any claim that ha[d] occurred within one year," and procedurally barred. See R.

3:22-12; R. 3:22-4. Although defendant's illegal sentence argument was not

time barred, the judge concluded it was procedurally barred because it had been

previously considered, and rejected, in his direct appeal. Because the illegal

sentence claim was already adjudicated, the judge determined defendant was

estopped from raising it again.

      We review the legal conclusions of a PCR judge de novo. State v. Harris,

181 N.J. 391, 421 (2004).

      A second or subsequent PCR petition is governed by Rule 3:22-4(b),

which provides:

            A second or subsequent petition for post-conviction
            relief shall be dismissed unless:

            (1) [I]t is timely under R[ule] 3:22-12(a)(2); and

            (2) [I]t alleges on its face either:

            (A) [T]hat the petition relies on a new rule of
            constitutional law, made retroactive to defendant's
            petition by the United States Supreme Court or the
            Supreme Court of New Jersey, that was unavailable
            during the pendency of any prior proceedings; or



                                                                         A-2714-17T4
                                         4
            (B) [T]hat the factual predicate for the relief sought
            could not have been discovered earlier through the
            exercise of reasonable diligence, and the facts
            underlying the ground for relief, if proven and viewed
            in light of the evidence as a whole, would raise a
            reasonable probability that the relief sought would be
            granted; or

            (C) [T]hat the petition alleges a prima facie case of
            ineffective assistance of counsel that represented the
            defendant on the first or subsequent application for
            post-conviction relief.

      Rule 3:22-12(a)(2) requires the filing of the petition within one year from

when one of these grounds commenced. Its time limitation "shall not be relaxed,

except as provided [t]herein." R. 3:22-12(b); see also State v. Jackson, 454 N.J.

Super. 284, 293 (App. Div. 2018) (noting that in 2010, by way of amendments,

the "Supreme Court made clear that the late filing of a second or subsequent

PCR petition could not be excused in the same manner as the late filing of a first

PCR petition").

      This petition is untimely under Rule 3:22-12(a)(2). The allegations of

errors in the jury instruction and polling arose from the trial in 1986. In the

direct appeal, defendant and his counsel had access to the trial transcripts. All

claims arising out of the trial should have been asserted on direct appeal after

reviewing the trial transcripts. Defendant has not provided any reason why he

could not have discovered any alleged errors in the jury instructions or polling

                                                                          A-2714-17T4
                                        5
procedure at an earlier time. Therefore, the claims were properly barred under

Rules 3:22-4 and 3:22-12.

      Defendant asserts the ineffective assistance of his trial, appellate, and first

PCR counsel because they failed to prevent the imposition of his "death

sentence."   We considered, and rejected, this argument in our review of

defendant's fifth PCR petition. Jones, No. A-4973-08, slip op. at 3, 4. Defendant

already challenged his sentence in the direct appeal. He could have claimed

ineffective assistance of trial and appellate counsel in any of his first four PCR

petitions. Allegations of ineffective assistance of the first PCR counsel should

have been made in the three subsequent petitions. These claims are properly

barred as untimely under Rule 3:22-4.

      In contrast, defendant's illegal sentence claim may be presented in a PCR

petition at any time. See R. 3:22-2(c). Here, defendant contends "[h]e was

illegally and incorrectly subjected to the penalty-phrase proceedings of

[N.J.S.A.] 2C:11-3(c) and . . . was given a 'life sentence through that process

from a death qualified jury.'" He further argues that the sentencing judge said




                                                                             A-2714-17T4
                                         6
he was imposing a "death sentence."2 Defendant asserts the death sentence

imposed on him is illegal.

      An illegal sentence cognizable on PCR is one that "exceeds the maximum

penalty provided in [the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1

to 2C:104 -9] for a particular offense" or is "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)); see also R. 3:22-2(c) (explaining an illegal sentence is

one "in excess of or otherwise not in accordance with the sentence authorized

by law").

      Here, the jury declined to impose the death penalty. And the sentencing

judge did not impose an actual "death sentence." Defendant was sentenced on

the murder conviction to prison for life, with a mandatory parole ineligibility

period of thirty years. Because this sentence was in the authorized range for the

crime of which defendant was convicted, his sentence was not "illegal." See R.

3:22-2(c).3


2
  During the sentencing hearing, the judge stated: "[T]he sentence that I'm about
to impose, I suppose, is a death sentence." He concluded: "The sentence, in
summary, is a life sentence with forty-five years without parole."
3
  To the extent defendant may be arguing the excessiveness of his sentence, we
found that contention meritless in the direct appeal. Jones, No. A-1776-86, slip
op. at 13. Therefore, that argument cannot be renewed in a PCR petition.
                                                                         A-2714-17T4
                                       7
Affirmed.




                A-2714-17T4
            8
