November 20, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MATTHEW J. BREWER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 824-06-86.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges Lintner and Graves.
Defendant Matthew J. Brewer appeals from a decision dated April 26, 2007, denying his fourth petition for post-conviction relief (PCR). Based on our review of the record and the applicable law, we affirm.
The facts established at defendant's trial, which took place in 1987, are fully set forth in our four prior unpublished decisions*fn1 and need not be repeated here. Defendant was sentenced on October 6, 1987, to consecutive sentences of thirty years imprisonment with a fifteen-year parole bar for first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), and twenty years imprisonment with a ten-year parole bar for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3). Thus, defendant received an aggregate sentence of fifty years, with a twenty-five-year parole ineligibility term.
On appeal, defendant presents the following arguments:
APPELLANT SEEKS DE NOVO REVIEW OF THE JUDGE'S DECISION, SINCE IT PERMITTED EAST JERSEY STATE PRISON CLASSIFICATION DEPARTMENT TO REPRESENT APPELLANT'S INTEREST ON GAP TIME MOTION, PURSUANT TO N.J.S.A. 2C:44-5b(2) RATHER THAN APPOINT AN ATTORNEY FROM THE OFFICE OF THE PUBLIC DEFENDER, CONTRARY TO N.J. CONST. ART. 1, PAR. 10.
THE COURT FAILED TO PROPERLY AWARD APPELLANT GAP TIME CREDITS, PURSUANT TO N.J.S.A. 2C:44-5b(2).
THE ILLEGAL SENTENCE CLAIMS RAISED HEREIN WERE NEITHER ADJUDICATED, NOR RAISED IN ANY OTHER PRIOR PROCEEDING[.]
THE LAW DIVISION ERRED BY DENYING APPELLANT'S PETITION TO CORRECT AN ILLEGAL SENTENCE, WHEN THE JUDGE SENTENCED HIM UNDER AN EX POST FACTO KIDNAPPING STATUTE, USED AN IMPROPER AGGRAVATING FACTOR TO INCREASE HIS SENTENCE FOR KIDNAPPING, AND USED AN EXTENDED TERM CRITERIA TO INCREASE APPELLANT TO THE MAXIMUM TERM FOR KIDNAPPING.
(A) THE JUDGE SENTENCED APPELLANT UNDER AN EX POST FACTO SENTENCING STATUTE, WHICH MUST BE REVERSED[.]
(B) THE JUDGE'S IMPROPER USE OF AGGRAVATING FACTORS TO INCREASE APPELLANT'S CONSECUTIVE SENTENCE FOR KIDNAPPING IS ILLEGAL.
(C) THE JUDGE ILLEGALLY USED AN EXTENDED TERM CRITERIA TO INCREASE APPELLANT'S SENTENCE FOR KIDNAPPING AND SENTENCED HIM TO A MAXIMUM CONSECUTIVE TERM.
THE JUDGE USED A 21[-]YEAR[-]OLD PRESENTENCE INVESTIGATION REPORT TO RESENTENCE APPELLANT, WHICH REQUIRES A REMAND TO THE LAW DIVISION FOR A RESENTENCING HEARING, SO ALL CURRENT INFORMATION MAY BE TAKEN INTO ACCOUNT.
After considering these arguments in lieu of the record, the applicable law, and the trial court's findings and conclusions, we are convinced that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add only the following comments.
In our initial decision dated February 28, 1989, we rejected defendant's claim that his sentence was manifestly excessive. We found defendant's sentence, "although severe, was fully justified by the consideration of the statutory factors and the Yarbough guidelines. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), [cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986)]; State v. Roth, 95 N.J. 334, 364-65 (1984)." State v. Brewer, No. A-1242-87 (App. Div. Feb. 28, 1989) (slip op. at 5), certif. denied, 121 N.J. 644 (1990). In a subsequent decision on January 19, 2006, we stated:
Clearly, the excessive sentence issue, including the consecutive aspect of the sentence, has been previously adjudicated and is barred from PCR review by Rule 3:22-5. It is also time-barred by Rule 3:22-12(a), and defendant has furnished no facts to establish excusable neglect or exceptional circumstances to justify the delay and relax the time-bar. See State v. Goodwin, 173 N.J. 583, 595 (2002).
[State v. Brewer, No. A-6885-03 (App. Div. Jan. 19) (slip op. at 3), certif. denied, 188 N.J. 218 (2006).]
The trial court's reasons for awarding defendant 192 days of gap-time credit were set forth in its letter dated November 17, 2006. The court determined that because defendant was sentenced at different times for multiple offenses, he was entitled to a gap-time credit, which "applies to the gap between the sentences." Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988). The PCR judge calculated defendant's gap-time credit as follows:
There are 192 days between March 28, 1987 and October 6, 1987, the two sentencing dates. In the previous Judgment of Conviction (JOC) for Ind. # 824-06-86, you were awarded this time as straight jail credit, but this was an incorrect designation. This time is properly labeled as gap-time credit, which is reflected in the amended JOC enclosed. To reiterate, you would have been owed additional gap-time credit for the 192 days spent in custody between the two sentencing dates; however, this period was covered in the original 496 days of credit originally awarded to you. You are not entitled to any additional credit, as this would constitute double credit.
Defendant's gap-time credit was set forth in an amended judgment of conviction (JOC), and, contrary to defendant's contentions, the entry of the amended JOC did not require the preparation of a new presentence investigation report, the appointment of counsel, or the presence of defendant at a resentencing hearing.
In a written decision dated April 26, 2007, the trial court also rejected defendant's claim that he received an illegal sentence. The court's explanation for its decision included the following:
Notwithstanding the fact that this claim is time-barred, there is no substantive law to support your position. You did not receive an illegal sentence. A review of the record reveals that you were duly sentenced in accordance with the law as it existed at the time. On March 17, 1987, at the time of sentencing, this [c]court weighed the appropriate aggravating and mitigating factors in your case and imposed a term within the ordinary range for kidnapping. The State did not move for persistent offender status, and this [c]court did not sentence you as such. You have presented no cause of action for this [c]court to consider.
Moreover, your case was decided by a jury, and both the verdict and the sentence that you claim is illegal were affirmed on direct appeal. Any claim challenging your sentence should have been raised at that time. Therefore, your motion is not only time-barred but is procedurally barred pursuant to R. 3:22-5, which prohibits petitions for Post-Conviction Relief on issues that have already been adjudicated. Once an issue is decided, even one of constitutional dimension, it may not be relitigated. State v. Smith, 43 N.J. 67, 74 (1964). You have failed to raise any new issues in your current petition, and since all claims have been conclusively decided in more than one forum, oral argument need not be granted.
As your motion is time-barred, procedurally barred and without merit, the requested relief is hereby DENIED.
Judge Callahan was thoroughly familiar with the facts of this case, and the record fully supports his findings and conclusions. We therefore affirm substantially for the reasons stated by Judge Callahan in his written decisions on November 17, 2006, and April 26, 2007.