On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, Ind. No. 85-04-0648.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Winkelstein and Chambers.
Defendant appeals from the denial of his second post-conviction relief application in which he sought to have his case remanded for sentencing, contending that his sentence was in violation of State v. Natale, 184 N.J. 458 (2005). Since this case does not fall within the pipeline retroactivity holding in Natale, the application for post-conviction relief was properly denied, and we affirm.
In a jury trial held in 1986, defendant was convicted of conspiracy to commit murder, N.J.S.A. 2C:5-2; possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a); conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and two counts of armed robbery, N.J.S.A. 2C:15-1(a)(1). The victims of the crime were defendant's parents. Defendant received an aggregate sentence of eighty-five years with forty-two and one half years of parole ineligibility and a $20,000 VCCB penalty.
On direct appeal, the only issue raised with respect to the sentence was the contention that the sentence exceeded the bounds permitted by State v. Yarbough, 100 N.J. 627 (1985), regarding cumulative sentencing. While the Appellate Division affirmed the conviction, it reduced the sentence to sixty years with thirty years of parole ineligibility, applying the Yarbough principles. State v. Melhem, No. A-5150-85 (App. Div. Oct. 21, 1988). The Supreme Court denied defendant's petition for certification. State v. Melhem, 113 N.J. 658 (1988).
In his first post-conviction relief application, defendant contended that he had been deprived of effective assistance of counsel at both the trial and appellate levels. That application was denied on January 17, 1990, by the trial judge who presided over the original trial. The Appellate Division affirmed. State v. Melhem, No. A-3041-89 (App. Div. Jan. 10, 1992). The Supreme court denied certification. State v. Melhem, 130 N.J. 17 (1992).
In this second post-conviction relief application, defendant contended that under Natale, he is entitled to a remand for resentencing. The trial court denied his application since his case does not fall within the pipeline retroactivity provisions in Natale. We agree with that decision and affirm.
The Supreme Court stated that its holding in Natale, decided in 2005, would be given only "pipeline retroactivity," that is it would apply "to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal." State v. Natale, supra, 184 N.J. at 494. A Blakely claim refers to the holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), where "the United States Supreme Court ruled that 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." Id. at 465-66. Since the Blakely issue was not raised during defendant's trial nor in his direct appeal nor was his case pending at the time of the Natale case, his sentence does not fall within the pipeline of retroactivity under Natale. Accordingly, the trial court correctly held that he is not entitled to have his sentence reviewed under the principles of Natale.
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