STATE OF NEW JERSEY VS. DALE BURNETT(81-02-0211, MERCER COUNTY AND STATEWIDE), A-1208-15T4

In 1980 Burnett committed a murder in Mercer County; he committed a second murder in 1981 in Burlington County.
Burnett was convicted of the 1980 murder in February 1982; prior to that, he had already been sentenced for the 1981 murder to life with 17 years parole ineligibility.
At sentencing for the 1980 murder the trial court imposed an extended-term life sentence with 25 years parole ineligibility, citing N.J.S.A. 2C:43-7 and finding multiple aggravating factors under N.J.S.A. 2C:44-1.
In March 2015 Burnett filed a pro se motion to correct an illegal sentence, arguing the court wrongly relied on a conviction entered before the 1980 offense but that was pending on direct appeal when he was sentenced.
The trial court dismissed Burnett’s motion without prejudice for failure to file a supporting brief; Burnett appealed, raising ineffective-assistance-of-counsel for appointed counsel’s failure to file the brief.
The Appellate Division addressed the merits and held Burnett’s motion lacked merit because the sentence was legal under N.J.S.A. 2C:43-7 and, in any event, a conviction pending on direct appeal may still be considered for persistent-offender enhancement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Legality of extended-term life sentence for 1980 murder	State: sentence lawful under N.J.S.A. 2C:43-7 based on aggravating factors	Burnett: sentence illegal because court relied on a prior conviction that was pending on direct appeal	Held: sentence lawful under N.J.S.A. 2C:43-7; aggravators justified life term
Use of convictions pending on direct appeal for persistent-offender enhancement	State: court may consider convictions entered before sentencing even if on appeal	Burnett: convictions on direct appeal cannot form basis for enhancement	Held: convictions entered before sentencing may be considered even if direct appeal pending (Haliski overruled part of Mangrella)
Ineffective assistance for counsel’s failure to file a brief	State: counsel’s failure harmless because underlying motion was meritless	Burnett: counsel’s omission denied effective assistance and prejudiced him	Held: no ineffective assistance because motion lacked merit; failing to pursue meritless claims is not ineffective assistance
Procedural dismissal without prejudice	State: dismissal for lack of brief proper; motion could be refiled	Burnett: dismissal prejudiced right to relief	Held: dismissal was without prejudice; court nonetheless adjudicated merits and affirmed

Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective-assistance test)
State v. Fritz, 105 N.J. 42 (adopts Strickland standard in New Jersey)
State v. Maguire, 84 N.J. 508 (extended-term life under N.J.S.A. 2C:43-7 available based on aggravating v. mitigating factors)
State v. Haliski, 140 N.J. 1 (sequence-of-convictions controls; convictions entered before sentencing count even if appeal pending)
State v. Mangrella, 214 N.J. Super. 437 (earlier rule limiting consideration of convictions pending appeal; partially superseded by Haliski)
State v. Schubert, 212 N.J. 295 (procedural rule on motions to correct illegal sentence)