On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 99-02-0114.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Chambers.
In this post-conviction relief application, defendant Kyle Ransome challenges his sentence. For the reasons set forth below, we affirm.
Defendant was convicted by a jury of aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser included offense of a first-degree murder charge; possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The charges arose out of the death of Richard Nichols who was killed on January 24, 1998, having been shot in his head and chest. On June 22, 2001, defendant received an aggregate sentence of twenty-five years imprisonment, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the trial court imposed the requisite assessments and fees.
The conviction and sentence were affirmed. State v. Ransome, No. A-6720-00 (App. Div. June 21, 2004). The Supreme Court denied certification on September 27, 2004. State v. Ransome, 181 N.J. 549 (2004). Thereafter, defendant filed a petition for post-conviction relief. The trial court denied a portion of the petition on the record on August 6, 2007, and denied the balance of the petition in a letter opinion dated August 10, 2007.
In this appeal, defense counsel contends that defendant must be remanded for resentencing stating:
DEFENDANT'S TWENTY-FIVE YEAR PRISON TERM WITH A MANDATORY MINIMUM EIGHTY-FIVE PERCENT PAROLE INELIGIBILITY FOR AGGRAVATED MANSLAUGHTER MUST BE VACATED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING, BECAUSE THE TERM EXCEEDED THE TWENTY-YEAR PRESUMPTIVE TERM BASED ON A JUDICIAL FINDING OF AGGRAVATING FACTORS "OTHER THAN A PRIOR CONVICTION," THEREBY VIOLATING DEFENDANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
The nub of defense counsel's argument is that defendant was sentenced under the statutory presumptive sentencing scheme, contrary to his constitutional rights. In State v. Natale, 184 N.J. 458, 484 (2005), the Court found that the presumptive sentencing scheme set forth in the statute, N.J.S.A. 2C:44-1(f)(1), was incompatible with the holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), and the Sixth Amendment right to trial by jury. However, the Natale Court provided only pipeline retroactivity to its decision. State v. Natale, supra, 184 N.J. at 494. As a result, the Natale decision applies only to those defendants who raised the Blakely issue at trial or on direct appeal and whose cases were on direct appeal on the date of the Natale decision, namely, August 2, 2005. Ibid. Since defendant's direct appeal came to its final conclusion on September 27, 2004, when the Supreme Court denied certification, almost a year before the Natale decision, his case was not in the Natale pipeline. Accordingly, this argument on appeal must fail.
In his pro se brief, defendant raises the following issue:
THE TRIAL COURT'S FAILURE TO CONDUCT A PRESENTENCE NERA [HEARING] AS MANDATED BY N.J.S.A. 2C:43-7.2(e) PRIOR TO SENTENCING [DEFENDANT] TO NERA ENHANCEMENTS WITHOUT A JURY FINDING TO DETERMINE PREDICATE FACTORS FOR  NERA ENHANCEMENTS VIOLATES DEFENDANT'S [CONSTITUTIONAL] RIGHTS AND DUE PROCESS.
This argument challenges defendant's sentence under NERA.
At the times defendant committed his offense and was sentenced, NERA applied to a defendant who had ...