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State v. Pemberthy

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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