April 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATHAN BAILEY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-524-88-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2009
Before Judges Stern and Lyons.
This is an appeal from the denial of defendant Nathan Bailey's fourth petition for post-conviction relief (PCR). We affirm.
In 1989, defendant was tried by a jury and found guilty of aggravated assault, armed robbery, and possession of a weapon for an unlawful purpose. The State moved for an extended term, and the trial court, after granting the motion, imposed an aggregate prison term of fifty years with an eighteen-year period of parole ineligibility and the appropriate VCCB penalties. Defendant appealed and we affirmed. State v. Bailey, No. A-5550-88T4 (App. Div. Jan. 27, 1992), certif. denied, 130 N.J. 12 (1992). In 1992, he filed his first petition for PCR. Ultimately, it was denied, and we again affirmed. State v. Bailey, No. A-7128-94T4 (App. Div. May 1, 1997). In 2001, he filed his second PCR petition. It was denied and we affirmed. State v. Bailey, No. A-5974-00T1 (App. Div. Sept. 19, 2002). On November 25, 2003, defendant filed his third petition for PCR. It was denied and we affirmed. State v. Bailey, No. A-2849-03T1 (App. Div. Jan. 31, 2005). On August 8, 2006, defendant filed his fourth PCR petition. It was denied on September 26, 2006, and this appeal ensued.
On appeal, defendant offers these arguments:
THE TRIAL COURT'S CONSIDERATION OF AN [SIC] INAPPROPRIATE AGGRAVATING FACTORS VIOLATE THE SENTENCING GUIDELINES AND THUS IS GROUNDS FOR VACATING THE SENTENCE.
THE SENTENCING JUDGE'S FINDING OF PREPONDERANCE OF EVIDENCE OF AGGRAVATING FACTORS OUTWEIGH THE MITIGATING FACTORS VIOLATED DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS.
DEFENDANT IS ASKING THE COURT TO CONSIDER HIS POST-MITIGATING FACTORS.
In addition to the points raised by defendant above, he argues that he received an illegal five-year sentence, with a five-year period of parole ineligibility on count one, aggravated assault by recklessly causing bodily injury to another with a deadly weapon, contrary to N.J.S.A. 2C:12- 1(b)(3). Defendant's claim is without merit. We note that on direct appeal, and in the prior PCR applications, we found that the trial judge appropriately sentenced defendant to an extended term on count one, given defendant's status as a repeat Graves Act offender. See N.J.S.A. 2C:43-7a(5) and N.J.S.A. 2C:43-7c.
With respect to defendant's first point, we note that the issue regarding the trial court's use of a particular aggravating factor is not an appropriate basis for relief. As we said in State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), "questions concerning the adequacy of the sentencing court's findings and the sufficiency of the weighing process employed should be addressed only by way of direct appeal." In Flores, we emphasized:
that post-conviction relief under R. 3:22-4 is to be accorded only with respect to grounds which "could not reasonably have been raised" in prior proceedings or which would otherwise justify the granting of such remedy in order to avoid "fundamental injustice" or the serious impairment of a defendant's constitutional rights.
We have also held that:
[w]hile an "illegal" sentence is correctable at any time, we are persuaded that this limited exception to the general rule should be confined to cases in which the quantum of the sentence imposed is beyond the maximum provided by law or where the term set by the court is not authorized by any statutory provision.
Defendant's second point essentially argues for his innocence. This issue has been well reviewed and there is nothing in the record that gives support to this argument. Defendant's third point is also unavailing in that it is premised on defendant being resentenced and there is to be no resentencing.
Consequently, we find all defendant's contentions to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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