June 26, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM JONES, A/K/A MASSAI G. KHABAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, 155-80-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 12, 2007
Before Judges Stern and Coburn.
Defendant appeals from the denial of his motion for post-conviction relief.
Following a jury trial, defendant was sentenced to an aggregate prison term of forty-four years with twenty-one years of parole ineligibility for armed robbery, aggravated assault, and other offenses. We affirmed his conviction in February 1984.
Judge Tomasello denied the petition for post-conviction relief, which was filed in 2005, for the following reasons:
He contends that the five year time bar on the PCR motion should be relaxed, as he contends his sentence was illegal. He also says his sentence should be reconsidered in light of the Blakely decision entered by our New Jersey Supreme Court in the past year.
Clearly, this PCR is out of time. He did not show excusable neglect. Obviously, he could not since the law has been in effect for some 20 years since the submission of his application for PCR.
However, in accordance with the concepts enunciated in both Blakely and Natale, these matters are not retroactive. They're either pipeline retroactive -prospective retroactive. It simply doesn't apply in this position as the courts have said.
On appeal, defendant offers the following arguments:
THE FACT THAT THIS PETITION WAS FILED MORE THAN FIVE YEARS AFTER THE JUDGMENT OF CONVICTION WAS ENTERED WAS DUE TO PETITIONER'S EXCUSABLE NEGLECT.
AS PETITIONER'S SENTENCE RUNS AFOUL OF STATE v. NATALE AND IS IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS, THE PETITION MUST BE REMANDED FOR A FULL HEARING ON THE MERITS.
We affirm substantially for the reasons expressed by Judge Tomasello, while noting that defendant's appellate brief contains neither facts nor argument indicating excusable neglect. In any event, State v. Natale, 184 N.J. 458, 494 (2005), is not applicable to this sentence as the judgment had been affirmed long before Natale was decided.
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