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State v. Bibbs

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEFFREY BIBBS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 87-10-1776.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2008

Before Judges Lisa and Simonelli.

Defendant Jeffrey Bibbs appeals from the order of September 27, 2006, denying his fourth petition for post-conviction relief (PCR). On this appeal, defendant raises the following arguments:

POINT ONE: HONORABLE JUDGE FREDERICK P. DE VESA IMPROPERLY DENIED APPELLANT THE RIGHT TO POST-CONVICTION RELIEF, COGNIZABLE UNDER RULE 3:22-12, WHICH INVOLVES AN ILLEGAL LIFE SENTENCE UNDER THE EXTENDED TERM, IN VIOLATION OF THE V, VI, XIV; N.J. CONSTITUTION, ART. I, ¶¶ 1, 10.

POINT TWO: JUDGE DE VESA'S RELIANCE UPON PUBLIC SAFETY ISSUE TO ENHANCE EXTENDED TERM IS UNCONSTITUTIONAL. U.S. CONST., ART. I, ¶¶ 1, 10.

We reject these arguments and affirm.

On April 5, 1988, a jury convicted defendant of second degree burglary while armed, contrary to N.J.S.A. 2C:18-2 (count one); fourth degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(1) (count two); first degree armed robbery, contrary to N.J.S.A. 2C:15-1 (count three); second degree attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count four); second, third and fourth degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1), (2), and (4) (counts five, six, seven); second degree escape, contrary to N.J.S.A. 2C:29-5 (count eight); second degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count nine); and third degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b) (count ten). Immediately following the trial, defendant was also found guilty of a one-count charge in a separate indictment of fourth degree possession of a handgun by a person previously convicted of a crime, contrary to N.J.S.A. 2C:39-7.

On May 26, 1988, after merging counts four, five, six, seven and nine into count three, the trial judge sentenced defendant on count three to a mandatory extended term of life imprisonment with a twenty-five year period of parole ineligibility as a second Graves Act*fn1 offender; a concurrent ten years with a five-year parole disqualifier on counts one and eight; a concurrent eighteen months on count two; and a concurrent five years with a two-and-one-half year parole disqualifier on count ten. Defendant also received a concurrent eighteen-month prison term with a nine-month parole disqualifier on the separate charge. His aggregate sentence was life imprisonment with twenty-five years of parole ineligibility.

Defendant appealed his conviction and sentence. We affirmed in all respects, but because defendant was not armed at the time of the offense, we remanded to amend the judgment of conviction on count one from second degree burglary to third degree burglary. We also exercised our original sentencing jurisdiction under R. 2:10-3 and sentenced defendant to a concurrent presumptive four-year prison term on count one. State v. Bibbs, No. A-5372-87T4 (App. Div. October 23, 1990), certif. denied, 126 N.J. 319 (1991).

Defendant then filed his first PCR petition, which was denied.*fn2 We affirmed. State v. Bibbs, No. A-676-92T4 (App. Div. December 1, 1994), certif. denied, 142 N.J. 517 (1995).

Defendant filed a second PCR petition, which was denied as untimely and because it lacked merit. We affirmed, but because defendant alleged that his 1973 conviction, which served as the predicate for the extended term second-offender Graves Act sentence, was committed with a fake gun, we remanded for reconsideration of defendant's sentence under the Graves Act. State v. Bibbs, No. A-0725-96T4 (App. Div. October 14, 1998), certif. denied, 157 N.J. 646 (1999).

On the remand, Judge DeVesa determined that the State failed to prove that defendant committed the 1973 predicate offense with a real gun. The judge vacated defendant's extended term second-offender Graves Act sentence, made the required Dunbar*fn3 analysis, and determined defendant was eligible for an extended term as a persistent offender. The judge re-sentenced defendant on the armed robbery conviction to an extended term of life imprisonment with a twenty-five year period of parole ineligibility. The judge also re-sentenced defendant on the other offenses, but the aggregate term was life in prison with a twenty-five year parole disqualifier. Defendant's application for reconsideration was denied. We affirmed. State v. Bibbs, No. A-2957-99T4 (App. Div. January 2, 2002), certif. denied, 171 N.J. 442 (2002).

Defendant filed a third PCR petition, contending his sentence was illegal because it contained a twenty-five year period of parole ineligibility, was based upon a 1974 conviction which was under the 2A Criminal Code, and did not meet the criteria of N.J.S.A. 2C:44-3a. Judge DeVesa denied the petition. We affirmed, finding that defendant's sentence was legal and did not violate Apprendi v. New Jersey,*fn4 and Blakely v. Washington.*fn5 State v. Bibbs, No. A-6405-03T1 (App. Div. June 7, 2005).

Defendant then filed a fourth PCR petition, contending his sentence is unconstitutional. He argued that Judge DeVesa violated the sentencing guidelines with respect to balancing aggravating and mitigating factors; the judge improperly relied on aggravating factors N.J.S.A. 2C:44-1a(1) and (8); and a jury should have considered aggravating factor N.J.S.A. 2C:44-1a(8). Defendant also argued he is entitled to re-sentencing pursuant to State v. Pierce, 188 N.J. 155 (2006) because his extended term sentence was longer than the former presumptive extended term sentence of fifty years. Judge DeVesa denied the motion. This appeal followed.

Based upon our careful review of the record and applicable law, we conclude that defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments. Defendant's challenge to his sentence has been fully adjudicated on appeal; he is not entitled to the Natale*fn6 pipeline retroactivity; and he did not raise a Pierce challenge below. "Generally, issues not raised below, even constitutional issues, will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest." State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006), certif. denied, 187 N.J. 83 (2006).

Even if defendant had raised a Pierce challenge below, we are satisfied that Judge DeVesa properly considered the aggravating and mitigating factors, and the sentence is appropriate.

Affirmed.


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