May 1, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAMON HERNANDEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 1141-06-95.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2007
Before Judges Cuff and Baxter.
Ramon Hernandez appeals from the denial of his pro se motion to correct an illegal sentence. Relying on State v. Pierce, 188 N.J. 155 (2006), he argues that the discretionary extended term sentence imposed by the trial court on June 24, 1997, is illegal because it violates the principles articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). He further argues that because he "raised a Blakely-like issue on direct appeal," the pipeline retroactivity standard articulated in State v. Natale, 184 N.J. 458 (2005), is satisfied. We disagree and affirm.
On June 24, 1997, defendant was sentenced to a thirty-year term of imprisonment, with a fifteen-year period of parole ineligibility after a jury found him guilty of one count of attempted murder, four counts of aggravated assault and two counts of possession of a weapon for an unlawful purpose. At the time of sentencing, all counts were merged into the attempted murder count. The thirty-year term of imprisonment for attempted murder was based upon the court's finding that defendant qualified as a persistent offender, pursuant to N.J.S.A. 2C:44-3a and State v. Dunbar, 108 N.J. 80, 90-91 (1987).
Defendant filed a notice of appeal on April 15, 1997, in which he raised the following issues:
THE TRIAL COURT ERRED IN PRECLUDING THE DEFENSE FROM ELICITING A PRIOR CONVICTION OF AN IMPORTANT STATE'S WITNESS TO IMPEACH HIS CREDIBILITY.
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In a per curiam opinion issued November 9, 1998, we affirmed defendant's convictions and sentence. State v. Hernandez, No. A-4897-96-T4 (App. Div. November 9, 1998). The Supreme Court subsequently denied certification. State v. Hernandez, 158 N.J. 72 (1999). In March 1999, appellant filed a petition for post-conviction relief (PCR), in which he claimed ineffective assistance of counsel, but failed to raise any sentencing issues. In April 2000, the trial court denied that petition without conducting an evidentiary hearing. On September 17, 2001, we affirmed the denial of the PCR. State v. Hernandez, No. A-4622-99-T4 (App. Div. October 1, 2001). Certification was denied by the Supreme Court on March 5, 2002. State v. Hernandez, 171 N.J. 442 (2002). Defendant thereafter filed a petition for a writ of habeas corpus with the United States District Court, which was denied in a written opinion and order of October 19, 2005. Hernandez v. Hendricks, Civ. No. 02-2636 (JCL) (U.S.D.C., D.N.J., October 19, 2005).
On March 20, 2006, defendant filed the instant motion to correct an illegal sentence, which was heard and denied in the Law Division by Judge Schultz. Defendant appealed.
When defendant was sentenced in January 1997, the court granted the State's motion to sentence him to an extended term of imprisonment, finding that the requirements of the applicable statute, N.J.S.A. 2C:44-3a, were satisfied. Specifically, the court found that defendant was over the age of twenty-one when he committed the offense and had been convicted on at least two separate occasions of two crimes, committed at different times, when he was at least eighteen years of age, with the most recent having occurred no more than ten years from the date of the crime for which he was then sentenced. N.J.S.A. 2C:44-3a. The judge further found, pursuant to Dunbar, supra, that an extended term sentence was necessary for the protection of the public. 108 N.J. at 90-91.
More than seven years later, the United States Supreme Court determined in Blakely, supra, that imposing a sentence exceeding the statutory maximum, when such sentence is based on facts not found by a jury or admitted by a defendant during a plea colloquy, violates the right to trial by jury. 542 U.S. at 310, 124 S.Ct. at 2541, 159 L.Ed. 2d at 418.
In Natale, supra, our Supreme Court determined that in order to bring our own sentencing scheme into compliance with the mandate of Blakely, the presumptive term established by N.J.S.A. 2C:43-6a should be eliminated. 184 N.J. at 487. The Court held that judges should balance the aggravating and mitigating factors, but should no longer use the presumptive term as a starting point. Ibid. The Court next determined the scope of retroactivity of the rule it announced, holding that a new sentencing hearing should be conducted in each "affected case." Id. at 495. An "affected case" was defined as one in the "pipeline" at the time Natale was decided. Accordingly, its holding would apply only "to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal." Id. at 494.
The decision in Pierce, supra, applied the principles of Blakely and Natale to extended term sentences and modified the manner in which such sentences are imposed. 188 N.J. at 169-70. Defendant has presented no basis for us to conclude that the scope of the retroactivity of the decision in Pierce should be any different from the pipeline retroactivity announced in Natale, and we see no reason to depart from the rule announced there.
Defendant did not raise Blakely-like claims on direct appeal. Instead, he merely challenged the application of aggravating factor one to his case, claiming in his brief:
Certainly, the attempted murder which occurred in the present case was no different than the overwhelming majority of other first degree attempted murders where serious life-threatening injuries were inflicted inevitably with a deadly weapon.
Defendant argued on direct appeal that the trial court erred in finding the existence of aggravating factor one, but he never challenged the court's power to evaluate aggravating factors through judicial fact-finding. Defendant failed to argue that a jury should determine whether the crime "was committed in an especially heinous, cruel or depraved manner." N.J.S.A. 2C:44-1a(1). We agree with the State that "[a] mere challenge to the applicability of an aggravating factor cannot be equated with raising a Blakely-like issue on direct appeal."
We also agree that if merely arguing sentencing error were deemed equivalent to raising a Blakely-like issue, pipeline retroactivity would be expanded to include every defendant who ever challenged on appeal the particular aggravating and mitigating factors that were applied to his sentence. This would produce a result contrary to the mandate of "pipeline retroactivity." Judge Schultz's conclusion that defendant was not in the pipeline for purposes of a Blakely/Natale resentencing was correct.
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