On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 99-02-0106-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2007
Before Judges Skillman and Winkelstein.
Defendant, Keith Koeppel, appeals from a May 8, 2006 order of the Law Division denying his motion for reconsideration of his sentence. On appeal, he raises the following argument:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OF SENTENCE BASED ON BLAKELY v. WASHINGTON, [542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004),] IN VIOLATION OF DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
In February 1999, defendant was indicted in Passaic County, Indictment No. 99-02-0106, charged with two counts of third-degree aggravated assault with a deadly weapon, and one count of fourth-degree stalking. He was tried to a jury in February 2002 and convicted of all charges. The court imposed an extended ten-year term with a five-year period of parole ineligibility for one count of aggravated assault, and lesser concurrent terms on the remaining charges. On direct appeal, we reversed the stalking conviction and affirmed his convictions for aggravated assault. State v. Koeppel, A-3823-02 (App. Div. Oct. 8, 2004). On February 1, 2005, defendant filed a petition for certification with the New Jersey Supreme Court, which the Court denied on March 16, 2005. State v. Koeppel, 183 N.J. 216 (2005).
The Law Division resentenced defendant on March 4, 2005. The court imposed an extended ten-year term with a five-year period of parole ineligibility. Defendant did not appeal. Instead, on April 3, 2006, more than a year later, he moved to have his sentence reconsidered. Defendant claimed his sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), as applied by the New Jersey Supreme Court in State v. Natale, 184 N.J. 458 (2005).
In an oral decision on May 5, 2006, the trial court determined that defendant's appeal was not "in the pipeline" when Natale was decided on August 2, 2005, and consequently Blakely and Natale were not applicable. See Natale, supra, 184 N.J. at 494 (applying its holding retroactively - "to defendants with cases on direct appeal as of the date of [the] decision and to those defendants who raised Blakely claims at trial or on direct appeal"); see also State v. Pierce, 188 N.J. 155, 172-74 (2006). We agree with the trial judge that because defendant's case was not on direct appeal when Natale was decided, and because defendant did not raise a Blakely claim at trial or on direct appeal, his claim was not in the pipeline for purposes of resentencing.*fn1
Defendant claims he is entitled to pipeline retroactivity because he raised Blakely in his petition for certification to the New Jersey Supreme Court. We reject that argument for two reasons. First, defendant's direct appeal was decided and his petition for certification was denied before the Court issued its decision in Natale. Second, had the Supreme Court granted defendant's petition for certification, the Blakely issue would have been addressed on direct appeal; but, because the Court did not grant review of our October 8, 2004 decision, his direct appeal process ended with our decision, before he raised a Blakely issue.
That said, defendant had still another opportunity to raise the Blakely issue, but failed to do so. Defendant was resentenced on March 4, 2005. Natale was decided on August 2, 2005. It would consequently have been considered in reviewing his new sentence had he filed an appeal. He did not, however, appeal from his March 4, 2005 sentence, and as a result he does not meet the criteria for pipeline retroactivity. See Natale, supra, 184 N.J. at 494.