On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-06-01984.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges Stern and C.S. Fisher.
Defendant appeals from the denial of his third petition for post conviction relief*fn1 - motion to correct an illegal sentence following convictions in 1996 of carjacking, possession of a firearm without a permit and possession of a firearm for an unlawful purpose, and imposition (after merger of the unlawful purpose conviction) of concurrent sentences aggregating fifty years with eighteen to be served before parole eligibility-the extended term imposed on the carjacking conviction. On his direct appeal in 1998, we vacated a second extended term which was imposed on the permit violation, and ordered that a four year term be imposed therefor, leaving the same aggregate term.
Defendant now contends that "defendant is entitled to resentencing under State v. Pierce [188 N.J. 155 (2006)]" because the imposition of an extended term for carjacking was illegal. However, the Pierce court relied on State v. Natale, 184 N.J. 458 (2005), with respect to remedy, State v. Pierce, supra, 188 N.J. at 172, and Natale made its holding applicable only to cases in the "pipeline," that is those "cases on direct appeal" when Natale was decided, and those cases in which defendant raised, in the trial court or on direct appeal, a Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), claim challenging the ability of the court to impose a sentence above the "presumptive" term without jury fact-finding. Natale, supra, 184 N.J. at 493-94.
Defendant further asserts that "prior to Pierce, defendant relied upon Apprendi[v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000)] on [a] motion to correct an illegal sentence when he argued that the extended term could not be imposed by a judicial fact-finding of a need to protect the public." An extended term under N.J.S.A. 2C:44-3(a), as imposed in this case, is an acknowledged exception to the ApprendiBlakely rationale because of the "prior conviction" exception, but Pierce also addressed the additional requirement, previously imposed by case law, of a finding that the extended term was required for "protection of the public." Pierce, supra, 188 N.J. at 167, 170. There is nothing in the record before us reflecting that defendant made an argument in the trial court or on his direct appeal which preserves his right to assert relief under Pierce. To the contrary, our opinion on the direct appeal reflects he only made a claim that the "extended term . . . was manifestly excessive and represents an abuse of discretion," and we agreed only as to that part of his argument on direct appeal which required vacation of a second extended term.
In our January 2002 decision affirming the denial of defendant's petition for post conviction relief in 2000, there is no evidence that an issue relating to sentencing was raised. Defendant is, in essence, now making a claim of excessive sentence using the new criteria announced in Pierce with respect to the imposition of an extended term sentence, and a claim of excessive sentence cannot be raised on post conviction relief. See State v. Ervin, 241 N.J. Super. 458, 470-72 (App. Div. 1989), certif. denied, 121 N.J. 634 (1990); State v. Flores, 228 N.J. Super. 586, 594-95 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).
In his reply brief, however, defendant asserts that he also filed an appeal from the denial of his 2004 petition to correct an illegal sentence and that we remanded for resentencing under Natale. If so, a new direct appeal could follow. The State does not mention such a proceeding or remand either in its responding brief or by a request to file a sur reply. However, all we did on a motion for leave to appeal as within time and as an indigent from the denial of that petition was to remand for reconsideration in light of Natale and State v. Abdullah, 184 N.J. 497 (2005), including consideration of its retroactive application. See State v. Roundtree, A-3159-04T2, remanded on August 11, 2005. The present claim cannot be considered because it was not timely raised.