July 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
REGINALD THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 01-02-0105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 27, 2009
Before Judges Carchman and Simonelli.
Defendant Reginald Thomas appeals from the denial of his post-conviction relief (PCR) petition. On appeal, he raises the following contentions:
POINT I - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE COURT ERRONEOUSLY HELD THAT DEFENDANT IS NOT ENTITLED TO RE-SENTENCING UNDER STATE V. NATALE, 184 N.J. 458 (2005).
POINT II - THE LOWER COURT ORDER MUST BE REVERSED SINCE THE ENHANCEMENT OF THE SENTENCE WAS UNCONSTITUTIONAL AND REQUIRES RE-SENTENCING ON GROUNDS INDEPENDENT OF STATE V. NATALE, 184 N.J. 458 (2005).
We reject these contentions and affirm.
The facts are straightforward. A grand jury indicted defendant for first-degree armed robbery, N.J.S.A. 2C:15-1 (counts one and two); fourth-degree possession of a weapon (imitation firearm) for unlawful purposes, N.J.S.A. 2C:39-4e (count three);*fn1 third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count four); second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count five); and second-degree burglary, N.J.S.A. 2C:18-2 (counts six and seven). The charges stemmed from a home invasion in Bridgewater where defendant, utilizing what the victims believed was a handgun, and defendant's accomplice, utilizing a knife, stole $950.
A jury convicted defendant on counts one, two, five, six, and seven, and on the lesser included charge of fourth-degree aggravated assault on count four. At sentencing, the judge merged counts five, six, and seven with counts one and two, and imposed two concurrent seventeen-year terms of imprisonment on counts one and two with an eight and one-half-year period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; and to a concurrent eighteen-month term of imprisonment on count four. The judge also imposed the appropriate assessments and penalty, and ordered $1000 in restitution.
Defendant appealed his conviction. We affirmed. State v. Thomas, No. A-3914-02 (App. Div. June 25, 2004). Our Supreme Court denied defendant's petition for certification. State v. Thomas, 182 N.J. 144 (2004).
Defendant argues that his seventeen-year term of imprisonment, with the parole ineligibility period, violates the constitutional principles established in Natale, supra, because it is above the presumptive term. He also argues that the imposition of an eight-year, six-month period of parole ineligibility violates his Sixth Amendment*fn2 right to trial by jury, and his due process rights.
Defendant's arguments lack merit. First, Natale only applies to cases on direct appeal as of the date of that decision for those defendants who raised claims under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). 184 N.J. at 494. Defendant's direct appeal was disposed of over a year before Natale was decided, he did not raise a Sixth Amendment challenge on that appeal, and he had no appeal pending as of the date Natale was decided. We discern no reason to apply Natale retroactively, as defendant suggests.
Second, the sentencing range for a first-degree offense is ten to twenty years. Defendant's sentence of seventeen years is below the statutory maximum and does not violate Natale.
Finally, on defendant's direct appeal, we carefully reviewed the record relating to his sentence and found no reason to disturb it. We specifically found that "[t]he judge carefully and appropriately considered and weighed the relevant sentencing factors, both factual and legal[.]" Thomas, supra, No. A-3914-02 (slip op. at 18-19). If an issue has been determined on the merits in a prior appeal it cannot be relitigated in a later appeal of the same case, even if of constitutional dimension. State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971).