STATE OF NEW JERSEY VS. PHILLIP A. DIXON (85-06-1145, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: May 22, 2019
• Docket: A-5246-17T1
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5246-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILLIP A. DIXON,

Defendant-Appellant. __________________________

Submitted May 13, 2019 – Decided May 22, 2019

Before Judges Sabatino and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 85-06-1145.

Phillip A. Dixon, appellant pro se.

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this pro se appeal, defendant Phillip A. Dixon seeks reversal of two

decisions of Judge Kathleen Delaney dated April 24, 2018 and June 14, 2018 denying his requests for relief from his 1987 conviction and ensuing 1991

resentencing.

Defendant was charged with the murder of a thirteen-year-old girl,

aggravated criminal sexual contact, and other offenses by a Camden County

grand jury. Following a 1987 jury trial, defendant was found guilty of most of

the counts of the indictment but not guilty of robbery. At that time, the death

penalty in New Jersey was still in effect. The jury imposed the death penalty in

the capital phase of the trial.

Defendant appealed as of right directly to the Supreme Court of New

Jersey. In State v. Dixon, 125 N.J. 223 (1991), the Court vacated the death

sentence because of jury instruction flaws in the capital phase. The matter was

remanded for resentencing.

In November 1991, the judge who had presided over the trial resentenced

defendant to an aggregate sentence of life plus five years, with a thirty-two-and-

one-half-year parole disqualifier. Defendant sought post-conviction relief

("PCR"), which was denied by the trial court in July 1997. That PCR denial was

affirmed on appeal by this court in February 2000. State v. Dixon, No. A-7031-

96 (App. Div. Feb. 25, 2000). Certification was denied by the Supreme Court

of New Jersey in September 2000. State v. Dixon, 165 N.J. 528 (2000).

A-5246-17T1 2 According to the parties' briefs, defendant also pursued habeas corpus

relief in the federal district court, which was denied in September 2004. That

denial was upheld by the Third Circuit in February 2005, and certiorari was

denied by the U.S. Supreme Court in October 2005. Dixon v. Cathel, 546 U.S.

891 (2005).

The present appeal arises out of what appellant in his pro se submission

to the trial court described as motions for a new trial, to correct an illegal

sentence, and for the appointment of counsel. Because his original May 2017

filing could not be located, a duplicate was resubmitted, and the matter was

referred to Judge Delaney.

In her April 24, 2018 letter decision, Judge Delaney denied relief with

respect to defendant's motions for a new trial and resentencing, finding the

claims to be time-barred under Rule 3:20-2 and Rule 3:21-10.

Subsequently, in her June 14, 2018 letter, Judge Delaney denied

defendant's motion for reconsideration. This letter focused on the fact that when

the court resentenced defendant in November 1991, it was making use of a

presentence report that was generated in 1987. Judge Delaney found that the

1987 presentence report was still "relatively current" and thus could be used at

his 1991 resentencing on remand from the Supreme Court.

A-5246-17T1 3 Defendant now appeals these April 2018 and June 2018 rulings. He raises

these points in his briefs:

POINT I

THE COURT ERRED IN DENYING APPELLANT'S MOTIONS WITHOUT ISSUING ADEQUATE FACTUAL FINDINGS AND A STATEMENT OF REASONS (PLAIN ERROR).

POINT II

THE COURT'S DECISION DENYING THE MOTION TO CORRECT AN ILLEGAL SENTENCE IS CONTRARY TO ESTABLISHED CASE LAW AND COURT RULES (PLAIN ERROR).

REPLY POINT I

RESPONDENT'S BRIEF IS OFF-POINT, FAILS TO ADDRESS THE ISSUES RAISED BY APPELLANT AND SHOULD BE IGNORED BY THIS COURT.

We reject defendant's arguments for both procedural and substantive

reasons. We agree with Judge Delaney that defendant's arguments are

procedurally barred and should have been raised long ago. There is also no

substantive merit to his claims.

When the trial court resentenced defendant in 1991, it was not

automatically required to have an updated presentence report. Even under

A-5246-17T1 4 current case law, no such automatic requirement exists. State v. Randolph, 210

N.J. 330, 350 (2012).

Defendant also complains that Judge Delaney did not address his assertion

that the assistant prosecutor allegedly told the grand jurors that the State did not

have to prove penetration in order to support a charge of aggravated sexual

assault. In its responsive brief on appeal, the State correctly points out that even

if this argument was properly before this court, it has no merit. For one thing,

the indictment charged defendant with aggravated criminal sexual contact , not

sexual assault, so penetration was not required and would not have been required

at the trial. In addition, case law provides that any flaws in the grand jury

proceedings are generally rendered harmless if the jury finds defendant guilty at

trial. See State v. Simon, 421 N.J. Super. 547, 551 (App. Div. 2011); State v.

Cook, 330 N.J. Super. 395, 411 (App. Div. 2000).

Having carefully considered defendant's arguments, we find they have no

merit. No further discussion is warranted. R. 2:11-3(e)(2).

Affirmed.

A-5246-17T1 5