June 13, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EARL AMIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 81-0333.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2008
Before Judges Stern and Collester.
The question on this appeal is whether an application for post-conviction relief (PCR) based on an illegal sentence, see R. 3:22-2(c),-12, or appeal from the denial thereof is a matter in the "pipeline" within the meaning of State v. Natale, 184 N.J. 458 (2005). Natale held that a defendant could obtain the benefit of resentencing if a Blakely issue, see Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), had been raised at a prior trial or on direct appeal therefrom, as well as on a pending appeal, when Natale was decided. Natale applied its holding only "to defendants with cases on direct appeal as of the date of the decision [it was decided - August 2, 2005] and to those defendants who raised Blakely claims at trial or on direct appeal . . . ." Id. at 494.
Defendant states his case falls within Natale "because he raised a Blakely issue on direct appeal of the denial of his motion to correct an illegal sentence," which of course is not a direct appeal. A post-judgment motion constitutes a collateral attack on the conviction, see, e.g., R. 2:3-1(b)(4); R. 3:22-1 et seq., as opposed to a direct appeal from a judgment of conviction, see R. 2:2-3; R. 2:3-1. See also, e.g., State v. Nash, 64 N.J. 464, 470 (1974). Defendant's motion to correct an illegal sentence (premised on the fact the sentence was made consecutive) was denied on October 5, 2001, four years before Natale was decided. Furthermore, that part of the record which has been produced before us*fn1 does not reflect that defendant raised a Blakely issue at trial or on the direct appeal.