June 27, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL F. RYAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 96-04-00511.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 17, 2008
Before Judges Stern and Coburn.
Defendant appeals from the denial on August 26, 2005, of his petition for post-conviction relief (PCR), challenging his conviction and sentence on indictment 96-04-511.
Defendant was sentenced to concurrent terms of life imprisonment without parole on November 21, 1997, for armed robbery and attempted murder. The sentence was imposed under the "Three Strikes Law," N.J.S.A. 2C:43-7.1(a). Concurrent sentence were imposed on other counts. The convictions and sentences were upheld on direct appeal. The denial of defendant's second petition for PCR filed in the year 2000 (regarding this matter and indictment 96-04-0475) was affirmed on December 2, 2002. Subsequent PCR petitions on this indictment were denied before this petition was filed.
We affirm the order denying PCR relating to the sentence substantially for the reasons given by Judge Richard J. Geiger in the relevant portions of his opinion of August 12, 2005, and because we sustained the sentence under the "Three Strikes" law on the direct appeal in 1999 and on appeal from the denial of PCR after State v. Oliver, 162 N.J. 580 (2000), was decided (although the issue was not expressly raised or addressed) in 2002. Judge Geiger notes that the issue of whether a conviction following waiver of a juvenile to the Law Division could be considered as a conviction for purposes of the "Three Strikes" law, N.J.S.A. 2C:43-7.1(a), was before the Law Division on the 2000 PCR petition which we affirmed in 2002. That petition is not in the record before us. However, Judge Geiger details the arguments made with respect to the fact defendant was a juvenile at the time of offense, and that such a conviction was not intended for inclusion under N.J.S.A. 2C:43-7.1. Judge Geiger also details the fact defendant in fact had a hearing under N.J.S.A. 2C:43-7.1(d) at the time of his sentence in 1997, and we reviewed that proceeding on the direct appeal. Against this procedural background, we cannot review the issue again.
However, in light of the amicus brief we add that State v. Oliver made clear that an offense occurring before the effective date of the "Three Strikes Law" could be considered a prior "strike" under that statute. See also State v. Livingston, 172 N.J. 209 (2002).*fn1 We also note that if a juvenile adjudication can be used to enhance a sentence, even for purposes of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), the use of a conviction following waiver of a juvenile to the Law Division can hardly be subject to challenge. See Boyd v. Newland, 467 F.3d 1139, 1151-52 (2006), cert. denied, __ U.S. __, 127 S.Ct. 2249, 167 L.Ed. 2d 1089 (2007).
To the extent defendant addresses the sentence on indictment 96-04-075 in his brief on this appeal, we refer to our opinion in A-2187-07T4 also decided today.