SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 18T4 STATE OF NEW JERSEY,
Pla intiff

- Respondent,

v. JAMES LER OY BAXTE R,
Defendant

- Appellant.

______________________ _

Submitted October 15, 2020

– Decided Before Judges Whipple and Rose. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 90

- 01

- 0093. James Baxter, appellant p ro se. Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Narline Casimir, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant James Baxter appeals pro se from a March 12, 2019 , trial court order denying his moti ons to compel discovery, for removal to federal court, to NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upo n any court

. " A lthough 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.

December 10 , 20202 A

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correct an illegal sentence and assign counsel, as well as the denial of his petition for post

- conviction relief (PCR) and his amendm ents to his petition. We affirm for the reasons stated by Judge Timothy Lydon in his written decision. Defendant was convicted by a jury in 1991 with first

- degree murder,
N.J.S.A. 2C:11

- 3 ( a ) (1 ); felony murder, N.J.S.A. 2C:11

- 3 ( a ) (3 ) ; first

- degree
robb ery, N.J.S.A. 2C:15

- 1 and 2C:2

- 6; third

- degree theft by unlawful taking,
N.J.S.A. 2C:20

- 3 ( a ) and 2C:2

- 6; and second

- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39

- 4 ( a ) and 2C:2

- 6. He was sentenced to an aggregate term of life impris onment with a thirty

- year term of parole ineligibility , and an ad ditional concurrent sentence of twenty years with ten years of parole ineligibility. We affirmed his conviction on direct appeal , and the Supreme Court denied certification. State v. Baxter , 134 N.J. 568 (1993). Defendant filed a PCR petition , which was denied and affirmed on appeal , and the Supreme Court denied certification. State v. Baxter , 161 N.J. 335 (1999). Defendant filed this second petition for PCR and moved for a n ew t rial in
S eptember 2018 , asserting n ewly

- d iscovered e vidence

. The newly

- di scovered evidence was that a cooperating witness, Ronald Granville, had a pending
indictment undisclosed at the time of trial that could have been used by defendant during cross

- examination t o undermine Granville's credibility. The3 A

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court denied defendant' s second PCR petition as well as other requested relief
in an omnibus order of March 12, 2019

. Defendant's appeal herein only
addresses the denial of his motion for a new trial and his motio n to correct an illegal sentence. H e argues the following:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT ' S MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE

. POINT II THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO CORRECT AN ILLEGAL SENTENCE

.
In his March 2019 written decision, Judge Lydon concl uded defendant's arguments regarding Granville's undisclosed indictment are procedurally barred.
The c ourt concluded:

In the amendment to your PCR, you raise a new ineffective assist ance claim

. You assert th a t your attorney " failed to make reasonable eff orts to learn of the State's key witness ' criminal history

. "

. . . . You assert that " had the jury been informed of the suppressed pending indictments , full criminal history , and the sentence considerations Granv ille would be receiving for his testimony re sulting in bias, it is 'r easonably probable ' that the result of the proceeding would have been different."

. . . . Your new ineffective assistance claim is procedurally barred. Under R ule 3:22

- 4, any PCR claim "t hat reasonably c ould have been raised in a prior proceeding" is barred from4 A

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- 18T4 assertion i n a future pr oceeding. Your trial was held over [twenty

- seven] years ago in Febru ar y 1991. More th an three years passed between you r trial and the submission of your first PCR on August 31, 1994. You had an op portu n ity during this period of time to identify and substantiate any ineffective assistance claims a gainst your attorney. In fact, your first PCR made several allegations of i neffective assistance, including the claim that your attorney f ailed to inform the c ourt of a conflict of intere s t

. You certainly cou ld have raised your new ineffective assistance claims as a part of your first PCR. It i s clear that your clai m does not rest on a previously unknown " factual predicate ." Rule 3:22

- 4. Instead, you si mply contend t h a t your trial attorney failed to explore Granville ' s alleged bias. Because you were in a position to asse r t this argument at a prior PCR proceeding, you are not pe r mitted [to] pursue it in this subsequent petition

. The court also conclude d defendant's claim s regarding Granville were barred by Rule 3:22

- 4 because they could have been raised on direct appeal.
The court stated defendant's arguments regarding Granville lacked substantive merit because "[i]n order to establish a Brady 1 violati on the defense must demonstrate that (1) the prosecution failed to disclose the evidence, (2) the evidence was of a favorable character for the defense; and (3) the evidence was
material. State v. Carter , 85 N.J. 300 , 311 (1981)

. " The court further state d

1 Brady v. Maryland , 373 U.S. 83 (1963).5 A

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defendant had not met the test to demonstrate the evidence had " the prope nsity
to influence the outcome of the trial. " Finally, the court concluded defendant's assertions were not sufficient to
meet the Strickland/Fritz 2 standard for ineffective assist ance claims. Based on
our review of the record , we discern no error requi ring us to disturb the denial of the petition nor the denial of a motion for a new trial. We also reject defendant ' s second argument regarding sentencing. Based on our review, t h e application of aggravating factor N.J.S.A. 2C:44

- 1 ( a ) (1 ) did
not render the sentence illegal.
Affirmed.

2 State v. Fritz , 105 N.J. 42 (1987) (adopting the standard set forth in Strickland v. Washington , 46 6 U.S . 668 (1984)).