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State v. Pickett

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 30, 2008

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

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-05-1733.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 28, 2008

Before Judges Winkelstein and LeWinn.

Defendant Jeffrey Pickett appeals from the August 27, 2007 order of the trial court denying his motion to correct an illegal sentence. He raises the following arguments for our consideration:

POINT I

THE SENTENCING COURT IMPROPERLY SENTENCED PETITIONER TO TWO EXTENDED TERMS, BOTH AS A PERSISTENT OFFENDER, AS WELL AS A SECOND GRAVES ACT OFFENDER, ADDITIONALLY, THE GRAVES ACT EXTENDED TERM IS ILLEGAL, ABSENT OF [SIC] THE PROOF THAT THE WEAPON USED IN THE PRIOR CONVICTION WAS A FIREARM. THUS, THE SENTENCE IMPOSED UPON DEFENDANT IS ILLEGAL AND MUST BE CORRECTED.

POINT II

(a). MOTION TO AMEND THE FINDINGS BY THE COURT TO QUESTION THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE FINDINGS PURSUANT TO R. 1:7-4, (b). THE SENTENCING COURT VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO A FAIR TRIAL and HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS, AS GUARANTEED BY THE UNITED STATES CONSTITUTION, (c). THE LIFE SENTENCE IMPOSED ON DEFENDANT FOR ATTEMPTED MURDER, IS EXCESSIVE AND VIOLATES THE PRINCIPLES GOVERNING PUNISHMENT FOR INCHOATE CRIMES, UNDER N.J.S.A. 2C:5-4(2).

Having reviewed the record, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion," and we affirm. R. 2:11-3(e)(2). We add only the following brief comments.

In May 1993, defendant was indicted for multiple offenses, including first-degree attempted murder in violation of N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1. Defendant was tried to a jury in January 1994 and was convicted on all counts. The sentencing court determined that defendant was extended-term eligible, either as a persistent offender under N.J.S.A. 2C:44-3(a), or as a second Graves Act offender under N.J.S.A. 2C:44-3(d).

Defendant was sentenced to an aggregate life term with a thirty- year period of parole ineligibility. We affirmed defendant's conviction and sentence in an unreported opinion. In that appeal, defendant raised numerous challenges to his sentence, including the following argument:

DEFENDANT WAS DEPRIVED OF THE RIGHT TO FUNDAMENTAL FAIRNESS WHEN THE TRIAL COURT ERRONEOUSLY IMPLIED [SIC] THE EXTENDED TERM IN ABSEN[CE] OF A PRIOR GRAVES ACT CONVICTION, IN VIOLATION OF DEFENDANT'S DUE PROCESS RIGHTS AS GUARANTEED BY THE 14TH AMENDMENT OF THE UNITED STATE CONSTITUTION.

[State v. Pickett, Docket No. A-4277-93 (App. Div. July 19, 1996) slip op. at 4.]

We found this contention "to be clearly without merit. R. 2:11- 3(e)(2)." Id. at 5. We held:

The trial judge properly sentenced defendant to an extended term both because of his extensive previous criminal record, N.J.S.A. 2C:43-6, and because he committed the attempted murder while using a firearm, a Graves Act offense, N.J.S.A. 2C:44-3a and d. The trial judge did not abuse his discretion in imposing a maximum extended term upon defendant for the attempted murder of [Police Officer Ronald] Soto and maximum ordinary terms for the attempted murders of [Police Officers Umar] Abdul-Hakeem and [Jevon] Mintz. Defendant's extensive prior criminal record was sufficient to justify the imposition of maximum terms. Nor did the judge abuse his discretion in imposing consecutive terms for two of the attempted murder convictions.

[Ibid. (citations omitted).]

The Supreme Court denied defendant's petition for certification on February 5, 1997. State v. Pickett, 148 N.J. 459 (1997). The issues raised in defendant's motion to correct an illegal sentence are identical to the sentencing issues raised and rejected in our 1996 opinion. Therefore, defendant's arguments are barred as having been previously raised. R. 3:22- 5.

Moreover, defendant's arguments are without merit. Defendant was extended-term eligible, given his extensive prior criminal history. He also was a "second Graves Act offender" at his 1994 sentencing. He had been convicted of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4), in 1986 on a count that included use of a firearm. N.J.S.A. 2C:43-6(c) includes N.J.S.A. 2C:12-1(b) convictions as eligible for an extended term. Therefore, defendant was extended-term eligible under the Graves Act in 1994.

At his 1994 sentencing, defendant received an extended term of life with a twenty-five-year parole ineligibility period under count five (first-degree attempted murder against Soto); and a consecutive twenty-year term on count one (first-degree attempted murder of Abdul-Hakeem); as these were Graves Act offenses, a ten-year period of ineligibility was imposed. N.J.S.A. 2C:43-6(c). Thus, defendant did not receive "two extended terms" as he claims. Therefore, his sentence is not "illegal."

An "illegal" sentence is one that "exceed[s] the penalties authorized by statute for a specific offense[,]" or one that "was not imposed in accordance with law." State v. Murray, 162 N.J. 240, 246-47 (2000). Defendant's sentence suffers from neither of these deficiencies.

Affirmed.

20080630

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