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State v. Pemberthy

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 13, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GABRIEL PEMBERTHY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 83-06-0643.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 16, 2008

Before Judges Parker and Yannotti.

Defendant Gabriel Pemberthy appeals from an order entered by the trial court on January 12, 2007, which denied his third petition for post-conviction relief (PCR). We affirm.

Following a trial before a jury, defendant was convicted of conspiracy to distribute and possess with intent to distribute more than one ounce of cocaine, in violation of N.J.S.A. 24:21-24, N.J.S.A. 24:21-19a(1), and N.J.S.A. 24:21-19b(2); possession of more than one ounce of cocaine, in violation of N.J.S.A. 24:21-20a(2); possession of cocaine with intent to distribute, in violation of N.J.S.A. 24:21-19a(1) and N.J.S.A. 24:21-19b(2); and theft of services, in violation of N.J.S.A. 2C:20-8a.

The drug charges involved some 17.9 pounds of 80% pure cocaine, with an estimated street value of between $12 million and $13 million. The theft of services charge was based upon the use by defendant of a "blue box" device that circumvented the telephone company's billing system.

After merging the drug charges, the court sentenced defendant on those convictions to life imprisonment with a twenty-five-year period of parole ineligibility. The judge also sentenced defendant to a consecutive eighteen-month term for the theft of services conviction. Defendant appealed and argued, among other things, that the sentences were unduly punitive and the trial court failed to consider the aggravating and mitigating factors. State v. Pemberthy, 224 N.J. Super. 280, 284-85 (App. Div. 1988).

We affirmed defendant's convictions and the sentences imposed. Id. at 303. We found "no abuse of sentencing discretion and no violation of the sentencing standards" and stated that "[t]he sentences were clearly warranted[.]" Ibid. Defendant filed a petition for certification with the Supreme Court seeking review of our judgment. The Court denied the petition. State v. Pemberthy, 111 N.J. 633 (1988).

Thereafter, defendant filed a petition for a writ of habeas corpus with the federal court on the ground that the prosecutor had made race-based peremptory challenges during jury selection. The federal district court granted the petition. Pemberthy v. Beyer, 800 F. Supp. 144 (D.N.J. 1992). The Court of Appeals for the Third Circuit reversed. Pemberthy v. Beyer, 19 F.3d 857 (3d Cir. 1994). Thereafter, defendant filed a petition for a writ of certiorari with the Supreme Court of the United States. The petition was denied. Pemberthy v. Beyer, 513 U.S. 969, 115 S.Ct. 439, 130 L.Ed. 2d 350 (1994).

Defendant then filed his first petition for PCR. He argued that the trial court did not have authority to impose a twenty-five-year period of parole ineligibility; the sentences amount to enhanced or extended terms that are illegal; the sentencing judge failed to articulate the aggravating and mitigating factors relied upon for the sentence; and he should be sentenced under N.J.S.A. 2C:1-1(d) because the maximum term under Title 24 exceeded the maximum term under the current law. The PCR court denied the petition, and defendant appealed. We affirmed. State v. Pemberthy, No. A-5595-95 (App. Div. June 23, 1997). Defendant filed a petition for certification with the Supreme Court. The Court denied the petition. State v. Pemberthy, 153 N.J. 48 (1997).

On September 10, 1997, defendant filed a second PCR petition. He alleged that his sentence was illegal because it was the harshest sentence ever imposed for the offense; there was an excessive disparity between his sentence and the sentence imposed on his co-defendant; he had been denied the effective assistance of trial, appellate and PCR counsel; and the prosecutor engaged in misconduct by representing to the court that defendant's sentences were not unusual. On July 10, 2000, the PCR court denied the petition.

Defendant filed his third petition for PCR on February 15, 2006. He alleged that the trial court erred when it failed to merge the theft of services count with the counts charging conspiracy and drug possession. Defendant maintained that the trial court erred by failing to give a separate statement of reasons for imposing maximum sentences for the offenses and requiring that they be served consecutively. He asserted that he had been denied the effective assistance of counsel because his attorneys had not raised these sentencing issues. Defendant further argued that his claims were not barred by Rule 3:22-12(a), which requires that a petition for PCR be filed within five years of the judgment of conviction unless defendant's failure to do so was the result of "excusable neglect." The PCR court assigned counsel to represent defendant in the matter. Counsel thereafter filed an amended PCR petition dated October 3, 2006.

The PCR court considered the petition on January 12, 2007 and, after hearing the arguments by counsel, placed its decision on the record. The court determined that defendant's challenge to his sentences is essentially a claim that his sentences are excessive, rather than a claim that the sentences are illegal. The court found that defendant's challenge to his sentences was barred by Rule 3:22-12(a) because the challenge had been asserted "many, many years out of time."

Nevertheless, the PCR court addressed the merits of defendant's arguments. The court rejected defendant's contention that the sentencing court erred by failing to merge the theft of services conviction with the drug convictions. The court found that the convictions did not merge because the elements of the crimes are different.

The PCR court additionally found that the sentences are not excessive. The court noted that the sentencing court had not expressly discussed the factors for imposing consecutive sentences that are set forth in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).

The PCR court found, however, that the sentencing judge had considered the aggravating and mitigating factors and found that the magnitude of the drug operation in which defendant had been engaged required imposition of "'the strictest sentencing measures.'" The PCR court additionally found that defendant had not been denied the effective assistance of counsel.

The court entered an order dated January 12, 2007, denying defendant's third petition for PCR. This appeal followed. Defendant raises the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN FAILING TO ARTICULATE ANY LEGAL BASIS FOR ITS IMPOSITION OF CONSECUTIVE MAXIMUM TERM SENTENCES ON DEFENDANT FOR TWO OFFENSES ARISING FROM THE SAME CONDUCT.

POINT II

THE SENTENCE IMPOSED BY THE TRIAL COURT WITHOUT AN UNDERLYING BASIS FOR CONSECUTIVE TERMS CONSTITUTES AN ILLEGAL SENTENCE WHICH MAY BE CORRECTED AT ANY TIME.

POINT III

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST., Amend. VI, XIV; N.J. CONST. (1947), Art. I, par. 10) AND SHOULD THEREFORE BE GRANTED A RE-SENTENCING HEARING.

POINT IV

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED.

A. Defendant Has Established Excusable Neglect.

B. Defendant's Petition Is Not Barred by Rule 3:22-4 or Rule 3:22-5.

POINT V

DEFENDANT'S PCR PETITION SHOULD HAVE BEEN GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF HIS PETITION.

We have considered the record in light of defendant's arguments and the applicable law. We are satisfied that defendant's arguments are entirely without merit. R. 2:11-3(e)(2). We therefore affirm the denial of defendant's third PCR petition substantially for the reasons stated by the PCR court in the decision that it placed on the record on January 12, 2007. We add the following brief comments.

Defendant argues that the sentencing court erred by failing to consider the Yarbough factors when it imposed consecutive sentences in this case. We disagree. We note that defendant was sentenced prior to the Supreme Court's decision in Yarbough. Thus, when defendant's sentences were imposed, there were "no specific criteria" in the criminal code for determining whether consecutive or concurrent sentences should be imposed. Yarbough, supra, 100 N.J. at 636. Thus, the determination of whether to impose a consecutive or concurrent sentence was committed to the sound discretion of the sentencing court. Ibid.

We are convinced that the trial court did not abuse its sentencing discretion by imposing consecutive sentences upon defendant. In his direct appeal, defendant challenged his sentences as excessive, although he did not argue that the sentences were excessive on the ground asserted in this latest PCR petition. Nevertheless, we held that there had been "no abuse of sentencing discretion and no violation of the sentencing standards." Pemberthy, supra, 224 N.J. Super. at 303.

We also reject defendant's argument that he was denied the effective assistance of trial, appellate and PCR counsel. Defendant's ineffective-assistance claim is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant argues that his attorneys were deficient because they did not seek merger of his drug convictions with the theft of services conviction, and because they failed to challenge the imposition of consecutive sentences. Merger was not warranted, however, because the elements of the offenses were different. Moreover, as we have explained, the trial court did not abuse its discretion by imposing consecutive sentences. Even if we assume that counsel erred by failing to raise these sentencing issues, defendant was not prejudiced thereby. It is abundantly clear that, had these sentencing issues been raised by counsel at the time of sentencing, on direct appeal, or in an earlier PCR petition, the results of those proceedings would not have been different.

Affirmed.

20090113

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