May 2, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ORLANDO SANTIAGO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 99-12-1425 and 00-06-0773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2008
Before Judges Skillman and LeWinn.
In 1999, defendant was indicted under indictment 99-12-1425-I for second-degree eluding, in violation of N.J.S.A. 2C:29-2(b), and two counts of second-degree aggravated assault, one in violation of N.J.S.A. 2C:12-1(b)(1) and the other in violation of N.J.S.A. 2C:12-1(b)(6). The indictment also charged defendant with three third-degree offenses.
In 2000, defendant was indicted under indictment 00-06-0773-I for another charge of second-degree eluding and two counts of second-degree aggravated assault, both in violation of N.J.S.A. 2C:12-1(b)(6). This indictment also charged defendant with two third-degree offenses.
Defendant pled guilty to all the charges under both indictments.
The trial court sentenced defendant to nine-year terms of imprisonment for the second-degree offenses charged in indictment 99-12-1425-I. The conviction for the violation of N.J.S.A. 2C:12-1(b)(1) was made subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court imposed five-year periods of parole ineligibility for the other two second-degree offenses. In addition, the court imposed five-year terms of imprisonment for the three third-degree offenses. All of these sentences were to be served concurrently.
The trial court sentenced defendant to ten-year terms of imprisonment, with five years of parole ineligibility, for the second-degree offenses charged in indictment 00-06-0773-I and concurrent five-year terms for the third-degree offenses charged in that indictment. All of these sentences were made concurrent to each other but consecutive to the sentences imposed for the convictions under indictment 99-12-1425-I. Thus, defendant's aggregate sentence is nineteen years imprisonment, with twelve years, six months and two-days of parole ineligibility.
We heard defendant's appeal on an excessive sentence calendar, see R. 2:9-11, and affirmed his sentences under both indictments, but remanded for the entry of amended judgments of convictions that merged his convictions for two of the third-degree offenses into convictions for second-degree offenses. State v. Santiago, No. A-3223-00T4 (App. Div. Jan. 9, 2002).
Defendant filed a petition for post-conviction relief claiming that he had received ineffective assistant of trial and appellate counsel and that his sentences violated the sentencing guidelines set forth in State v. Natale, 184 N.J. 458 (2005).
The trial court denied defendant's petition by written decision issued on October 26, 2006.
On appeal, defendant presents the following arguments:
I. THE TRIAL COURT ERRED IN SENTENCING MR. SANTIAGO TO A NINE YEAR SENTENCE WITH A FIVE YEAR PAROLE DISQUALIFIER.
II. MR. SANTIAGO'S SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005).
The State agrees with defendant's argument, presented under Point I of his brief, that the five-year periods of parole ineligibility for the two non-NERA, second-degree offenses for which he was sentenced are illegal because they exceed one-half the nine-year base terms imposed for those offenses, and therefore, those periods of parole ineligibility must be reduced to four-and-one-half years. See N.J.S.A. 2C:43-6(b); N.J.S.A. 2C:43-6(i).
The argument presented under Point II of defendant's brief is clearly without merit. R. 2:11-3(e)(2). Natale only requires resentencing without regard to a former presumptive term of "defendants with cases on direct appeal as of the date of [that] decision and . . . of defendants who raised Blakely claims at trial or on direct appeal[.]" 184 N.J. at 494. Defendant's direct appeal was decided on January 9, 2002, which was more than three years before Natale was decided on August 2, 2005, and defendant did not raise any Sixth Amendment claim either at sentencing or on the appeal from his sentence.
Accordingly, the case is remanded to the trial court for entry of an amended judgment of conviction under indictment 99-12-1425-I, under which defendant must serve four-and-a-half year, rather than five-year, periods of parole ineligibility under counts one and two. The judgments of convictions are affirmed in all other respects.
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