On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-05-0467.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker and R. B. Coleman.
Defendant Rahgeam Jenkins appeals from an October 28, 2005 order denying his motion to correct an illegal sentence. After reviewing the contentions advanced on appeal, we affirm.
On May 13, 1997, Jenkins was indicted for two counts of first degree armed robbery, N.J.S.A. 2C:15-1. Each count of the indictment alleged that Jenkins committed a theft while armed with or threatening the immediate use of a deadly weapon. The case proceeded to trial, at the conclusion of which, the jury found Jenkins guilty as charged. On June 15, 1998, the trial court sentenced Jenkins as a second time Graves Act offender, N.J.S.A. 2C:43-6c,*fn1 and imposed concurrent extended terms of sixty years in prison with a twenty-year period of parole ineligibility, consecutive to a sentence Jenkins was then serving for another armed robbery. At sentencing, the judge stated: "I would note that the record of the trial in this particular case clearly indicates the use of a firearm during the commission of the robbery. I find a firearm was used." Jenkins appealed and his conviction and sentence were affirmed on November 5, 1999.
On April 20, 2001, Jenkins filed a petition for Post Conviction Relief (PCR). That petition was denied in two orders dated July 2, 2001 and July 30, 2001. Jenkins appealed from those orders and we affirmed. On May 16, 2003, Jenkins moved for reconsideration pursuant to State v. Rue, 175 N.J. 1 (2002).
That motion was denied, and on September 8, 2003, the Supreme Court denied Jenkins' petition for certification.
On October 8, 2003, Jenkins filed a second petition for PCR, which was denied as time barred on October 28, 2003. He appealed, and while that appeal was pending, the United States Supreme Court decided Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Under Blakely, "a sentence based on judicial factfinding that exceeds the maximum sentence authorized by either a jury verdict or a defendant's admissions at a plea hearing runs afoul of the Sixth Amendment right to trial by jury." State v. Natale, 184 N.J. 458, 465 (2005). In light of the Blakely decision, Jenkins amended his PCR petition to include a challenge to his extended-term sentence. Jenkins' motion was denied.
On December 16, 2004, Jenkins filed a motion to correct an illegal sentence. After a hearing on October 28, 2005, the trial court denied the motion. On March 8, 2006, Jenkins filed the instant appeal. In the brief submitted by the Office of the Public Defender on his behalf, Jenkins argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE BASED ON THE HOLDING OF STATE V. FRANKLIN, IN VIOLATION OF DEFENDANT'S [RIGHTS PURSUANT TO THE] SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
Jenkins also submitted a brief pro se in which he presents the following argument for our consideration:
THE APPELLANT WAS DENIED THE RIGHT TO DUE PROCESS, WHEN THE LOWER COURT IMPOSED AN EXTENDED TERM PURSUANT TO THE GRAVES ACT, AS HE DID NOT QUALIFY FOR THE GRAVES ACT SENTENCING ON HIS PRESENT OFFENSE.
Jenkins' counsel contends that in light of State v. Franklin, 184 N.J. 516 (2005), the trial court erred by imposing an extended sentence because it was the judge, not the jury, that concluded that Jenkins used a firearm in the commission of the robberies for which the jury found him guilty. Jenkins himself contends that he did not qualify for the Graves Act sentencing under the subject indictment. He further argues the judge and prosecutor subverted the jury's verdict by finding "facts that could raise the defendant's sentence ...