SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3707- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. NATASHA WHITE, Defendant-Appellant.

________________________

Submitted December 19, 2023

– Decided January 8, 2024 Before Judges Rose and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07

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- 3478. Joseph E. Krakora, Public Defender, attorney for appellant (Andrew Robert Burroughs, Designated Counsel, on the briefs ). Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney for respondent (Matthew E. Hanley, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3707

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Defendant Natasha White appeals from a June 30, 2022 Law Division order, which denied h er second petition for post-conviction relief (PCR) w ithout an evidentiary hearing. We affirm because the petition was untimely filed a nd otherwise lacked merit. We incorporate by reference the facts and procedura l history set forth in our prior opinion, affirming defendant's conviction s and sentence on direct appeal. State v. White (White I), No. A- 0304 -09 (App. Div. July 10, 2012) (slip op. at 3- 11 ). Defendant's "convictions arose out of two related i ncidents." Id. at 3. "In the first incident, defendant purposefully ram med her vehicle" into her paramour Zachary Sanders's vehicle after they argue d outside of a bar. Id. at 3- 4. She then "attempted to hit Sanders" before driv ing off. I d. at 4. The second incident occurred several days later at the same bar. Id. at 5. Defendant and Sanders had another argument and exited the bar. I d. at 6. While intoxicated, defendant intentional ly drove her vehicle into Sanders and another individ ual

. Id. at 7-8

. Sanders "landed on the middle of the [vehicle's] h ood," and defendant nonetheless continued to drive, dragging Sanders un der her vehicle, which resulted in his death. Ibid. In 2009 , a jury convicted defendant of multiple offenses cha rged in an Essex County indictment, including murder and vehic ular homicide by3 A- 3707

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recklessly operating a motor vehicle, and related o ffenses. The trial judge sentenced defendant to an aggregate sentence of for ty-four-and- one -half years in prison with a period of parole eligibility of th irty-four years. Defendant appealed, challenging the admission of tr ial testimony, jury charges, causation, and sentencing, among other iss ues. See id. at 11-12. W e affirmed defendant's convictions and sentence

. Id. at 2. In March 2013, defendant filed a timely petition fo r PCR, asserting trial counsel was ineffective for failing to: "assert an intoxication defense" ; "adequately cross-examine and impeach witnesses" ; "properly advise defendant about a plea offer"; and "preserve evidence[,]her v ehicle[,]for inspection by an expert." State v. White (White II), No. A- 4595 -13 (App. Div. Sept. 14, 2016) (slip op. at 3)

. We affirmed the denial of her PCR petiti on . Id. at 7. In May 2018, defendant filed a self-represented mot ion to correct an illegal sentence. In July 2019, a different judge denied the motion without prejudice because the motion was improperly filed.
In the Fall of 2019, defendant filed her second PCR p etition and a motion requesti ng appointment of counsel for her second petition. In December 2021, a new PCR judge denied defendant's application but thereafter vacated the order, permitting appointment of counsel on the refiling o f the second PCR

.4 A- 3707

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In the refiled second PCR petition, defendant mainly alleged ineffective assistance of counsel (IAC) of prior motion counsel , stating: "[m]otion counsel lacked diligence and failed to zealously represent" her; "[c]umulative [e]rrors denied [her] of the effective assistance of motion counsel"; and the application was "timely and properly filed and should be consid ered on the merits." In her self-represented supplemental brief, defendant addi tionally argued her convictions should be vacated and a new trial granted because "the tr ial court's instructions to [the jury] were unduly confusing an d did not accurately reflect the state of [the law]" on the charges for murder a nd vehicular homicide; "thus[,] the sentences . . . are illegal because the verdict s are inconsistent and mutually exclusive." In support of her petition, defendant submitted a c ertification from one of h er two trial attorneys. After hearing argument, the PCR judge reserved decision and thereafter issued a written statement of reasons that accompanied the June 30, 2022 order denying defendant's petiti on . The judge accurately summarized the procedural history regarding defendant's prior PCR application s and squarely addressed the issues raised in view of the governing law. The ju dge succinctly addressed the timeliness of defendant's present petition and conc luded:

Here, defendant's second PCR petition was clearly untimely. Indeed, she does not assert a newly5 A- 3707

- 21 recognized constitutional right, [R.] 3:22-12(a)(2) (A), or that her ineffectiveness claim is based on information or evidence that could not have been discovered earlier through the exercise of reasonab le diligence. [ R. ] 3:22-12(a)(2)(B). Further, defendant's second PCR petition was not timely under [Rule] 3:22

- 12(a)(2)(C) because she does not allege IAC of her first PCR counsel and in any event, it was not filed with in one year of November 30, 2016, the date the Supreme Court denied her first PCR petition. The judge, "[f]or completeness," then addressed the issues defendant raised, finding the contentions "were previously de cided in her direct appeal and her first PCR," vaguely asserted, or without merit. The judge specifically addressed defendant's IAC claims against motion cou nsel and the alleged resulting illegal sentence:

It is apparent that by styling this motion as one t o correct an illegal sentence, defendant attempted to circumvent the limitations established in R[ule] 3: 22- 4(b) and R[ule] 3:22-12(a)(2), for a second PCR petition. While an order to correct an illegal sen tence, "may be entered at any time," R. 3:21 -10(b)(5), recasting the arguments does not permit them to be reasserted. Defendant's claims are based on substa ntive challenges to her convictions that were or could ha ve been raised in her direct appeal. Absent the limit ed circumstances in which a second PCR petition is permitted, none of which are present here for the reasons stated above, defendant has exhausted the leg al avenues for challenging the evidence supporting her convictions or the validity of the jury instruction s at her trial.6 A- 3707

- 21 . . . . Th er efore, based on the facts of . . . defendant's case , where the jury found that . . . defendant drove her car at the victim with the intent to kill him and in do ing so drove the vehi cl e in a reckless manner that resulted in the victim's death, properly supports a conviction on the vehicular charge. There is nothing inconsistent in those findings. Finding the assertions time-barred and without meri t, while noting the substantial evidence adduced at trial, the PCR judg e denied the claims without an evidentiary hearing. On appeal, defendant raises the following points for our consideration:
POINT I DEFENDANT'S SENTENCE WAS ILLEGAL AS IT WAS THE PRODUCT OF MUTUALLY EXCLUSIVE AND INCONSISTENT VERDICTS IN CONTRAVENTION OF N.J.S.A. 2C:11-8(a)(3).

POINT II AS DEFENDANT HAD SHOWN THAT SHE HAD RECEIVED INEFFECTIVE ASSISTANCE OF FIRST PCR COUNSEL AND THAT SHE HAD BEEN PREJUDICED THEREBY, THE PCR COURT ERRED BY DENYING HER SECOND PCR PETITION WITHOUT AN EVIDENTIARY HEARING. (1) The interests of justice and fundamental fairness require [] relaxation of the procedural bars in this case.7 A- 3707

- 21 (2) Defendant's first PCR counsel failed to properly investigate the case and present all of defendant's cognizable issues. We affirm substantially for the reasons set forth i n the PCR judge's cogent statement of reasons. We add only the following co mments. In the absence of an evidentiary hearing, on the cl aims defendant now raises on appeal, we "conduct a de novo review ." State v. Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (quoting State v. Harris, 181 N.J. 391, 421 (2004)). Rule 3:22 -4(b) places strict limitations on second and subse quent petitions for PCR. The Rule compels dismissal of a subsequen t PCR petition unless the defendant can satisfy the time requirement under Ru le 3:22 -12(a)(2), and alleges the following grounds for relief:

(A) that 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 (B) that the factual predicate for the relief soug ht could not have been discovered earlier through the exerci se of reasonable diligence, and the facts underlying t he 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 ; or8 A- 3707

- 21 (C) that the petition alleges a prima facie case o f [IAC] that represented the defendant on the first or subs equent application for [PCR]. [ R. 3:22 -4(b).] In turn, Rule 3:22 -12(a)(2) imposes a time limitation for subsequent PCR petitions. Under the Rule, a second or subsequent petition for PCR must be filed within one year after the latest of:

(A) the date on which the constitutional right ass erted was initially recognized by the United States Supre me Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to c ases on collateral review; or (B) the date on which the factual predicate for th e relief sought was discovered, if that factual predicate co uld not have been discovered earlier through the exerci se of reasonable diligence; or (C) the date of the denial of the first or subsequ ent application for [PCR] where [IAC] that represented the defendant on the first or subsequent application fo r [PCR] is being alleged. [ R. 3:22 -12(a)(2).] Although the time limitations are not absolute and may be waived to prevent a fundamental injustice, the Rules must be viewed in light of their dual key purposes: "to ensure . . . the passage of time does not prejudice the State's retrial of a defendant" and "'to respect the need for achie ving finality.'" State v.9 A- 3707

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DiFrisco, 187 N.J. 156, 166-67 (2006) ( quoting State v. Mitchell, 126 N.J. 565, 576 (1992)). However, the Rule makes it clear that th is relaxation rule only applies to first PCR petitions, not to second or su bsequent ones. See R. 3:22

- 12(b); Jackson, 454 N.J. Super. at 293; see also R. 1:3 -4(c) (prohibiting the court and the parties from enlarging the time to file a p etition for PCR under Rule
3:22 -12). Here, we denied defendant's first PCR appeal in Sep tember 2016 , White
II , slip op. at 1. Yet, defendant did not file h er second petition until 2019

. Defendant acknowledged her second petition was unti mely. We are unpersuaded by defendant's argument that her claims should not be "dismissed out of hand based on procedural technicalities ." We conclude, as did the PCR judge in his cogent wri tten decision, that defendant's present petition was time-barred. See R. 3:22 -12(a)(2)(B).
A dditionally, the PCR judge correctly recognized, Rule 3:22 -5 bars defendant's contentions against trial counsel, which were previ ously decided

. Rule 3:22 -5 provides: "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resultin g in the conviction or in any post -conviction proceeding brought pursuant to this rul e . . . or in any appeal taken from such proceedings." A PCR petition is no t "an opportunity to10 A- 3707

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relitigate cases already decided on the merits." State v. Preciose, 129 N.J. 451, 459 (App. Div. 1999). Although we agree defendant's second PCR petition is untimel y, for the sake of completeness, we address defendant's illega l sentence contention. It is clear a sentencing error may be corrected at any ti me before the sentence is completed and "relief may be granted to a PCR appli cant based on the '[i]mposition of [a] sentence in excess of or other wise not in accordance with the sentence authorized by law.'" State v. Murray, 162 N.J. 240, 246 (2000) (alterations in original) (quoting R. 3:22 -2(c)). Our Supreme Court has recogniz ed " th [e] two [discrete] categories of illegal sentences have been 'defined narrowly. '" State v. Hyland, 238 N.J. 135, 145 (2019) (quoting Murray, 162 N.J. at 246)

. Defendant argu es her sentence "was illegal," and the "sentences sho uld not have been imposed" for murder and vehicular hom icide be cause the convictions resulted from "conflicting verdicts" an d were "mutually exclusive. " We conclude, as did the PCR judge that defendant's contention that the tri al judge failed "to instruct the jury that it must find one or the other states- of -mind but not both and then apply the facts to determine what crime, if any, was committed by defendant" is without merit. Defendan t was convicted of the11 A- 3707

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separate and distinct charges of : murder, first-degree vehicular homicide, and second-degree vehicular homicide. Defendant does n ot dispute the jury was instructed on the required elements for each offens e but argues "a defendant may [not] be convicted of different offe nse s requiring different states- of -mind." As the PCR judge correctly noted, "the jury instructio ns were held adequate on direct appeal and reframing the argument here does not preclude the substantive bar to issues previously decided." Again, de fendant has not alleged an illegal sentence because her sentence was neither excessive nor unauthorized by law. Defendant has not cited, nor has our research revea led, any authority for her contention that N.J.S.A. 2C:1-8(a) provides "a defendant may [not] be convicted of two different offenses requiring diffe rent states- of -mind." N.J.S.A. 2C:1-8(a) also provides: "When the same conduct of a defendant may establish the commission of more than one offense, the defend ant may be prosecuted for each offense[,]" unless certain exceptions apply. None is applicable here. Further, defendant's convictions were not based on "[i]nconsistent findings of fact . . . required to establish the co mmission of the offenses." See N.J.S.A. 2C:1-8(a)(3). Simply because the charged offenses have different
requ isite states of mind does not make them mutually exclusi ve. A defendant may be convicted of separate offenses with separate elements, includ ing12 A- 3707

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different states of mind. See N.J.S.A. 2C:2-2(c)(2 ) ("When the law provides that a particular kind of culpability suffices to e stablish an element of an offense such element is also established if a person acts w ith higher kind of culpability"). As the PCR judge correctly found, defendant has recast her prior ar guments posited in her direct appeal as an alleged illegal sentence. We are unpersuaded and see no reason to disturb the PCR judge's well-r easoned decision

. We also reject defendant's claims, raised for the f irst time on appeal, that her fi rst and second PCR counsel were ineffective in thei r representation. Defendant argues first PCR counsel neglected to "in vestigate and timely raise all of her cognizable claims" and specifically fail ed to: "inform her she must file a second PCR within one year"; raise "why tria l counsel failed to investigate and advance a Battered Women Syndrome defense" ; interview her second trial counsel; investigate trial counsel's inadequate pr eparation and examination of the "defense accident reconstructionist expert"; an d examine why "trial counsel failed to engage with defendant." As defendant raised or could have raised these issues in her prior applications , they are barred under Rule 3:22 -12(a)(2)(C)

. Finally, defendant's contention that second PCR cou nsel was ineffective for failing to argue her first PCR attorney was ine ffective is equally unavailing. As defendant indirectly acknowledges, her IAC claim s against first PCR13 A- 3707

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attorney are raised for the first time on this appe al. As such, those claims are barred under Rule 3:22 -12(a)(2)(C). To the extent we have not addressed defendant's rem aining arguments, we determine they lack sufficient merit to warrant dis cussion in a written opinion.
R. 2:11 -3(e)(2). Affirmed.