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State v. Senger

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 8, 2008

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

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 93-04-1101.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 14, 2008

Before Judges Gilroy and Baxter.

Defendant appeals from the July 6, 2006, order of the Law Division, denying his petition for post-conviction relief (PCR). We affirm.

Tried to a jury, defendant was convicted of second-degree reckless manslaughter (a lesser-included offense of first-degree murder); fourth-degree unlawful possession of a weapon; and third-degree hindering apprehension. On April 28, 1994, defendant was sentenced as a persistent offender to an extended term of twenty years of imprisonment, with a ten-year period of parole ineligibility on the conviction for reckless manslaughter. Lesser concurrent sentences were imposed on the other two convictions. Because the trial facts were disclosed at length in our prior opinion, State v. Senger, No. A-5811-93 (App. Div. March 21, 1996) (slip op. at 1-14), it is unnecessary for us to detail the evidence against defendant for these crimes. We affirmed the judgment of convictions and the sentences imposed. Id. at 12-14. On June 5, 1996, the Supreme Court denied defendant's petition for certification. State v. Senger, 145 N.J. 371 (1996).

On November 18, 2003, almost nine-and-one-half-years post-entry of the judgment of convictions, defendant filed his pro se petition for PCR, asserting that the Prosecutor's Office had suppressed exculpatory evidence. On August 4, 2005, assigned counsel filed a supplemental brief, arguing:

POINT I.

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL SINCE THE STATE FAILED TO DISCLOSE EXCULPATORY EVIDENCE.

POINT II.

THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS TRIAL COUNSEL [ELICITED] TESTIMONY THAT THE DEFENDANT WAS A "BURGLAR."

POINT III.

DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS OF THE LAW, AND RIGHT TO A FAIR TRIAL SINCE TRIAL COUNSEL FAILED TO MOVE FOR A MISTRIAL DUE TO A CONFLICT OF INTEREST.

POINT IV.

THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE, AND HIS CONSTITUTIONAL RIGHT TO A TRIAL BY JURY WAS VIOLATED WHEN THE COURT IMPOSED A SENTENCE[] BEYOND THE STATUTORY PRESUMPTIVE TERM.

POINT V.

THE CUMULATIVE EFFECT OF THE GROUNDS FOR POST-CONVICTION RELIEF IDENTIFIED BY DEFENDANT WARRANTS VACATION OF HIS CONVICTIONS AND SENTENCES, AND THE GRANT OF A NEW TRIAL.

POINT VI.

THE DEFENDANT HAS ESTABLISHED EXCUSABLE NEGLECT FOR RELAXATION OF THE FIVE YEAR LIMIT TO FILE A PETITION FOR POST-CONVICTION RELIEF.

On June 23, 2006, Judge Michael R. Connor denied the motion for PCR on both procedural and substantive grounds. Procedurally, the judge determined that most of defendant's arguments were barred by the five-year period of limitation contained in Rule 3:22-12(a). Substantively, the judge determined that defendant's arguments lacked merit. A confirming order was entered on July 6, 2006.

On appeal, defendant argues:

POINT I.

THE DEFENDANT HAS ESTABLISHED EXCUSABLE NEGLECT FOR RELAXATION OF THE FIVE YEAR LIMIT TO FILE A PETITION FOR POST-CONVICTION RELIEF.

POINT II.

THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS TRIAL COUNSEL ELICITED TESTIMONY THAT THE DEFENDANT WAS A BURGLAR.

POINT III.

THE DEFENDANT'S SENTENCE IS ILLEGAL UNDER BLAKELY*fn1 AND NATALE*fn2 AND THEIR PROGENY.

POINT IV.

THE ADDITIONAL ARGUMENTS RAISED IN DEFENDANT'S PRO SE PCR PETITION AND BRIEF, AS WELL AS PCR COUNSEL'S BRIEF, SUPPORT[] VACATING THE ORDER DENYING PCR AND GRANTING DEFENDANT'S REQUESTED RELIEF.

After carefully considering defendant's arguments in light of the record and the applicable law, we are satisfied that all of them are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Connor in his oral opinion of June 23, 2006. Nevertheless, we add the following comments.

Defendant argues that the trial judge erred in determining that his petition for PCR was time barred pursuant to R. 3:22-12(a), asserting that the rule does not apply where a petitioner seeks "to correct an illegal sentence." R. 3:22-12(a). Defendant contends that the twenty-year extended-term imposed on his conviction of second-degree reckless manslaughter is illegal under Blakely and Natale, because the trial court imposed a sentence beyond the then-presumptive term of fifteen years for a first-degree crime, after determining that aggravating sentencing factors (3), (6), and (9) were applicable, citing Natale; State v. Thomas, 188 N.J. 137 (2006); State v. Pierce, 188 N.J. 155 (2006). Defendant asserts that the trial judge erred in denying his petition for PCR; that his sentence must be vacated; and the matter must be remanded for re-sentencing because he is entitled to pipeline retroactivity of Natale, having made similar arguments on direct appeal. We disagree for several reasons.

The trial judge did not deny this part of defendant's petition on procedural grounds; instead, the trial judge rejected the argument on its merits because defendant's case did not qualify for pipeline retroactivity as directed by the Court. Natale, supra, 184 N.J. at 494. Secondly, we agree with the trial judge, that defendant's case does not fall within that narrow corridor of cases for which the Court provided retroactive effect of Natale. The Court accorded Natale "[p]ipeline retroactivity"; that is, applied the "holding to defendants with cases on direct appeal as of the date of [the] decision[, August 2, 2005,] and to those defendants who raise Blakely claims at trial or on direct appeal." Ibid.

The phrase "on direct appeal" means "in any case still on direct appeal at the time [the] new rule is set forth." State v. Cummings, 184 N.J. 84, 99 (2005). Pipeline retroactivity, contrary to full retroactivity, does "not apply to those defendants who had exhausted all avenues of direct relief at the time [the decision] was decided." State v. Knight, 145 N.J. 233, 258 (1996). See also, State v. Yanovsky, 340 N.J. Super. 1, 11 (App. Div. 2001) (holding that the decision of State v. Carty, 332 N.J. Super. 200 (App. Div. 2000), aff'd, 170 N.J. 632, mod., 174 N.J. 351 (2002), was limited to pipeline retroactivity, that is, "to all pending cases, including those on direct appeal at the time Carty was decided, but not to those cases in which defendants had exhausted all avenues of direct relief at the time Carty was decided).

Here, defendant had filed a direct appeal from his judgment of convictions and asserted among other matters, that his sentences were excessive. We denied defendant's appeal on March 21, 1996. Senger, supra, slip op. at 12-14. The Court denied defendant's petition for certification on June 5, 1996. Senger, supra, 145 N.J. at 371. Because defendant's direct appeal had been concluded prior to the Court's decision in Natale, this case does not fall within the ambit of pipeline retroactivity of the Natale decision.

Lastly, although defendant cited Thomas and Pierce in support of his argument that he is entitled to have his sentences vacated, we determine those two cases are distinguishable from this matter, because both cases fell within the retroactive pipeline of Natale.

Affirmed.


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