                                 NOT FOR PUBLICATION WITHOUT THE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-0331-16T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

GREGORY DAVIS, a/k/a
ZAKEE MOHAMMAD,

     Defendant-Appellant.
_________________________________

                    Submitted June 19, 2018 – Decided September 27, 2018

                    Before Judges Nugent and Accurso.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 87-06-0668.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Janet A. Allegro, Designated Counsel, on the
                    brief).

                    Michael A. Monahan, Acting Union County
                    Prosecutor, attorney for respondent (Milton S.
                    Leibowitz, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      On July 14, 2014, defendant, Gregory Davis, filed a pro se petition for

post-conviction relief (PCR), challenging two sentences imposed twenty-four

years earlier — in May 1990 — for the third-degree crimes of burglary and theft.

A Law Division judge denied defendant's PCR petition, finding that it was

untimely and lacking in merit. Defendant appeals and argues the following

points:

POINT I     THE PCR COURT ERRED AS A MATTER OF LAW
            IN NOT STRICTLY ADHERING TO THE EXACT
            LANGUAGE OF THE SENTENCING COURT
            INDICATED IN THE TRANSCRIPT, OR IN THE
            ALTERNATIVE, REMANDING THE MATTER FOR
            A FULL EVIDENTIARY HEARING ON THE ISSUE
            OF THE SENTENCING COURT'S INTENT.

POINT II    THE COURT ERRED IN DENYING DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF
            WITHOUT AFFORDING HIM AN EVIDENTIARY
            HEARING    TO   FULLY    ADDRESS   HIS
            CONTENTION THAT HE FAILED TO RECEIVE
            EFFECTIVE LEGAL REPRESENTATION.

POINT III THE PCR COURT ERRED IN DENYING THE
          DEFENDANT'S       PETITION FOR   POST
          CONVICTION         RELIEF   REGARDING
          INEFFECTIVE ASSISTANCE OF COUNSEL, IN
          PART, ON PROCEDURAL GROUNDS PURSUANT
          TO R. 3:22-12(a).

Finding no error in the Law Division judge's decision, we affirm.


                                                                        A-0331-16T4
                                       2
         This is the relevant procedural background. In June 1987, a Union County

grand jury charged defendant in a three-count indictment with three third-degree

crimes: receiving stolen property, burglary, and theft. In March 1990, a jury

acquitted him of receiving stolen property but convicted him of burglary and

theft.

         The court sentenced defendant on May 25, 1990. When defendant was

sentenced, he was serving two fifteen-year to life terms in New York for the

attempted murders of two New York police officers. State v. Davis, No. A-

5483-89 (Jan. 15, 1993) (slip op. at 3). In addition, three weeks before his

sentencing on the Union County burglary and theft charges, a Law Division

judge had sentenced him to serve an extended term of five years without parole

on one count of fourth-degree aggravated assault, a crime he committed in New

Jersey before his arrest in New York. Id. (slip op. at 1-2). The judge ordered

defendant to serve the five-year extended term for aggravated assault

consecutively to the sentences he was serving in New York. Id. (slip op. at 2).

Thus, when defendant came before the court for sentencing on the Union County

burglary and theft charges, he was serving the New York sentences and had been

sentenced but had not begun to serve the New Jersey sentence on the aggravated

assault charge.


                                                                          A-0331-16T4
                                         3
      During defendant's sentencing on the Union County burglary and theft

offenses, the court sentenced defendant to concurrent extended ten-year terms

with five years of parole ineligibility on each. In addition, the court stated:

"these sentences to run consecutively to the sentences you are presently serving"

(emphasis added).1 In the judgment of conviction entered the same day, the

court ordered the concurrent sentences on the burglary and theft counts to run

"consecutively to the sentence defendant is presently serving, as well as others

since imposed (emphasis added)."

      In his PCR petition, defendant argued that the additional words in the

judgment of conviction, "as well as others since imposed," were not orally

pronounced by the judge during the sentencing proceeding but were added to

the judgment of conviction after the sentencing proceeding and were not

contemplated at the time of sentencing. Defendant contended the additional


1
  On appeal, we affirmed defendant's convictions as well as the sentence on the
burglary count. However, because N.J.S.A. 2C:44-5(a)(3) permitted the
imposition of only one extended term, a point the State conceded, we vacated
the extended term imposed on the theft count, exercised our original jurisdiction,
and imposed a term of five years with two and one-half years of parole
ineligibility. State v. Davis, No. A-6651-89 (Oct. 22, 1991) (slip op. at 2-3).
More recently, on March 31, 2017, we granted defendant's motion for a remand
for resentencing in accordance with State v. Bull, 227 N.J. 555 (Jan. 23, 2017)
and State v. Hudson, 209 N.J. 513, 517 (2012) (prohibiting imposition of a
second extended-term sentence for an offense committed prior to the imposition
of the first extended-term sentence).
                                                                          A-0331-16T4
                                        4
words increased his sentence in violation of his right to due process. He argued

that both his trial and appellate counsel were ineffective for failing to raise th e

sentencing issue, and that he was entitled to an evidentiary hearing.

      The trial court denied defendant relief. Noting a PCR petition must be

filed within five years after the entry of the judgment of conviction, R. 3:22-

12(a)(1), and finding neither excusable neglect nor a reasonable probability that

enforcement of the time-bar would result in a fundamental injustice, R. 3:22-

12(a)(1), the trial court concluded defendant's PCR petition was time -barred.

The court rejected defendant's assertion of excusable neglect based on his

ignorance of the right to post-conviction relief and his claim he could not access

New Jersey jurisprudence while serving a sentence in New York. The court

pointed out that defendant had appealed his conviction and sentence. The c ourt

also concluded ignorance of the law did not constitute excusable neglect.

      Notwithstanding its conclusion defendant's PCR petition was time-barred,

the court addressed defendant's arguments. The court found "crystal clear" that

the sentencing judge intended the sentences on the burglary and theft counts to

run consecutive to both defendant's New York sentence and to the New Jersey

sentence for aggravated assault. The court also found that the words spoken by

the sentencing judge at defendant's sentencing proceeding were not inconsistent,


                                                                            A-0331-16T4
                                         5
but were in fact consistent, with the words that appear in the judgment of

conviction. The court explained that while an oral opinion "normally controls

over an inconsistent JOC," there was no inconsistency.

      The court also found it significant the JOC was entered on the same day

as the sentencing. The court repeated the Law Division judge's pronouncement

during the sentencing proceeding was consistent, unambiguous, and "reflect[ive

of] the judge's clear intent that defendant serve the sentence she had imposed

consecutively to the sentence defendant was already serving, that being in New

York for attempted murder, and the sentence imposed three weeks earlier." The

court rejected defendant's ineffective-assistance claims and denied his PCR

petition.

      Having considered defendant's arguments in light of the record and

controlling legal principles, we conclude they are without sufficient merit to

warrant further discussion in a written opinion. R. 2:11-3(e)(2). Defendant's

PCR petition was filed well beyond the five-year deadline for first PCR

petitions, and we agree with the trial court that defendant failed to demonstrate

either excusable neglect or a reasonable probability that enforcement of the time

bar would result in a fundamental injustice.




                                                                         A-0331-16T4
                                       6
      Moreover, we, like the trial court, reject defendant's contention that his

sentence, now twice amended, is illegal. Rather, the question is the intention of

the sentencing judge. "In ascertaining such intention we are not limited to the

literal interpretation of the words used by the judge in imposing sentence – we

may properly use all means at our disposal including, but not limited to, a review

of the transcript of the sentence hearing." State v. Heslip, 99 N.J. Super. 97,

100 (App. Div. 1968).      Here, the court's comments during the sentencing

proceeding, as well as the court's execution of the JOC on the same date,

establish the sentencing judge intended to impose on the burglary and theft

convictions sentences that would run consecutive to both defendant's New York

sentence and his sentence for the aggravated assault he committed in New

Jersey. Consequently, we affirm the judgment of conviction.

      Affirmed.




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                                        7
