August 11, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JORGE LABRADA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 89-05-0666.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges Rodríguez and Payne.
Defendant Jorge Labrada appeals from the July 2, 2007 denial of his petition for post-conviction relief (PCR). We affirm.
An escape code sounded at the New Jersey State Prison, located in Trenton, at approximately 3:55 a.m. on November 21, 1988. The responding officers found two inmates still within the prison, standing near a ladder positioned against the prison wall. The inmates had been able to dig a hole through approximately thirty-nine inches of stone to escape and assemble a ladder in the alleyway for the purpose of climbing over the prison wall. Two inmates, defendant and Andrew Bisesi, were unable to escape over the wall and were wrestled to the ground and handcuffed. A third inmate's foot was seen going over the barbed wire prison wall. Both inmates were strip searched. Two shanks were found taped to defendant's legs.
Defendant was later examined by Dr. Gibbons, a physician at the prison, who testified that defendant had superficial abrasions on his anterior chest wall and on both knees. Fourteen hours after Defendant and Bisesi were found near the ladder, Officer Richard Czyz and his partner apprehended the third escapee, Gonzalo Marrero.
Defendant was convicted by a jury of third-degree criminal attempt to escape, N.J.S.A. 2C:5-1, 2C:2-6 and 2C:29-5a. On June 22, 1990, Judge David J. Schroth imposed an extended ten-year term with a five-year period of parole ineligibility, to run consecutively with the sentence defendant was already serving.
Defendant moved to file an appeal nunc pro tunc on November 15, 2004. We denied the motion without prejudice and referred it to the Office of the Public Defender to determine whether pursuit of a petition for PCR would be a more appropriate remedy. State v. Labrada, No. AM-214-04T3 (App. Div. Jan. 4, 2005).
On June 29, 2005, defendant filed pro se a first PCR petition. Counsel was appointed. He filed an amended PCR petition and a memorandum of law.
Judge Andrew J. Smithson denied defendant's PCR petition because it was time-barred by Rule 3:22-12. The judge further rejected defendant's claim for relief based on an illegal sentence, finding State v. Natale, 184 N.J. 458 (2005) inapplicable because defendant's case was not on direct appeal at the time that decision was issued. The judge issued a written opinion.
On appeal, defendant contends:
I. DEFENDANT'S PETITION FOR [PCR] SHOULD NOT HAVE BEEN BARRED BECAUSE IT WAS FILED OUT OF TIME.
II. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY.
III. THIS MATTER SHOULD BE REMANDED TO THE TRIAL COURT FOR A NEW SENTENCING HEARING.
Defendant filed pro se a supplemental brief, contending:
I. IN THE INTEREST OF JUSTICE, THE COURT SHOULD HAVE RELAXED THE PROCEDURAL BAR, AND GRANTED [DEFENDANT] AN EVIDENTIARY HEARING ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, PURSUANT TO N.J. CONST. ART. 1, PARAS. 1 AND 10, AS WELL AS R. 3:22-12.
II. [DEFENDANT'S] TRIAL ATTORNEY WAS INEFFECTIVE FOR NEGLECTING TO HAVE AN INTERPRETER AT HIS SENTENCING HEARING, AND PRESUMING THAT HIS SENTENCE WAS GOING TO BE CONCURRENT RATHER THAN CONSECUTIVE, CONTRARY TO THE SIXTH AND FOURTEENTH AMENDMENTS OF U.S. CONST., AS WELL AS N.J. CONST. ART. 1, PAR. 10.
III. THE COURT ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM BASE SENTENCE OF TEN YEARS WITH FIVE YEARS PAROLE INELIGIBILITY ON [DEFENDANT'S] CONVICTION FOR ATTEMPTED ESCAPE.
Defendant was sentenced on June 22, 1990. His first petition for PCR was not filed until June 29, 2005, fifteen years after sentencing and well beyond the five-year time bar. Judge Schroth was clear and unambiguous in giving defendant a sentence consecutive to that which he was currently serving for aggravated manslaughter, robbery and theft. He further explained during sentencing:
The sentence of the Court will be that you will be committed to the custody of the Commissioner of the Department of Corrections for a period of ten years, and that you will be ineligible for parole for a period of five years . . . .
[T]he sentence will be served consecutively to the sentence presently imposed or being served and I'm making the sentence consecutive because this incident has absolutely nothing to do with the crime for which you are presently serving. They happened at different times, different places, the facts are different, the victims are different, everything is different.
There's no reason in the world why this sentence should be concurrent and every reason why it should be consecutive.
Defendant argues that he had no knowledge the sentences were to run consecutively; that he was unable to understand due to language barriers; and the prison records, prior to August 31, 2004, indicated that defendant was serving only the initial sentence of forty-five years. These arguments are insufficient to overcome the clarity of the judge's statements at sentencing. Not only did Judge Schroth specifically state that the sentences were to run consecutively, but he also went on to explain the rationale behind his decision. It follows that even if defendant was unsure of the meaning behind the words "consecutive" and "concurrent," through the context surrounding the judge's explanation, the effect of the ten-year sentence should have been clear and understandable.
Therefore, we agree that defendant is time-barred from bringing a PCR petition because more than five years have passed since the 1990 conviction. R. 3:22-12. Defendant failed to demonstrate excusable neglect, which would permit a PCR petition to be brought outside of the five-year time limit. R. 3:22-12. See State v. Morales, 120 N.J. Super. 197, 200 (App. Div.), certif. denied, 62 N.J. 77 (1972). Defendant additionally failed to show that exceptional circumstances existed, necessitating the relaxation of the time-bar pursuant to Rule 1:1-2. See State v. Mitchell, 126 N.J. 565, 580 (1992).
Defendant's arguments regarding ineffective assistance of counsel are thus time-barred and will not be discussed in any further detail. However, an illegal sentence claim is not procedurally barred pursuant to Rule 3:22-12 and may be filed at any time. Nonetheless, defendant's sentence is not illegal pursuant to Natale, supra, 184 N.J. 458.
First of all, Natale was applied retroactively only to those cases on direct appeal at the time the Natale decision was rendered. Id. at 494. Defendant filed his direct appeal on November 15, 2004, and the Appellate Division denied it on January 4, 2005. The Supreme Court's decision in Natale was not handed down until August 2, 2005.
Additionally, even if Natale were to be applied, defendant's sentence would not be considered illegal. The United States Supreme Court has held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 2d 435, 455 (2000). See also Blakely v. Washington, 542 U.S. 296, 301, 124 S.Ct. 2531, 2536, 159 L.Ed. 2d 403, 412 (2004). The New Jersey Supreme Court adopted the constitutional principles of Apprendi and Blakely in Natale, supra, 184 N.J. at 489. Natale brought New Jersey's Code under the constitutional framework of the Sixth Amendment by eliminating presumptive terms, making the top of the sentencing range for the crime charged the "statutory maximum" authorized by the jury verdict or the facts admitted by a defendant at his guilty plea. Natale, supra, 184 N.J. at 487.
The Supreme Court addressed the constitutionality of discretionary extended-term sentences in State v. Pierce, 188 N.J. 155 (2006). The Court held that once the statutory eligibility requirements were met, the maximum sentence to which defendant may be subject, for purposes of Apprendi, is the top of the extended-term range. Id. at 168. In other words, the range of a sentence starts at the minimum of the ordinary-term range and ends at the maximum of the extended range. Id. at 169. It is within the sound judgment of the court where within this range the court chooses to sentence a defendant. Ibid. The court's judgment is of course subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors. Ibid. As has traditionally been the case, an abuse of discretion standard applies in the review of a sentencing court's decision to impose an extended-term sentence. Id. at 169-70.
Here, both parties agreed that defendant was eligible for an extended-term, pursuant to N.J.S.A. 2C:44-3a, for having had two prior convictions within ten years of the current sentencing date. However, defendant argued during sentencing that although eligible, he had only the minimum number of convictions to qualify and thus requested the judge to act within his discretion and deny an extended-term sentence. Judge Schroth found that defendant had been convicted twice prior within the past ten years and further found three aggravating factors applicable:
[O]ne, the risk that you will commit another offense. You're only 31 years of age. This is your third adult conviction. There's a great risk that you will commit another offense. Number six, the extent of your prior criminal record, including the seriousness of the offenses of which have been convicted. I've already covered that topic. And number nine is present, the need for deterring the defendant and others from violating the law.
No mitigating factors were found applicable. In balancing the aggravating and mitigating factors, Judge Schroth found that the aggravating factors substantially outweighed the mitigating factors and defendant was sentenced to an extended-term of ten years with a five-year parole ineligibility.
Defendant's prior two convictions extended defendant's maximum sentence to which he may be subject, for purposes of Apprendi, to the top end of the extended-term sentence. See Pierce, supra, 188 N.J. at 168. Therefore, the sentencing range defendant was subject to spanned from three to ten years.
N.J.S.A. 2C:43-6a(2) and (3). Judge Schroth had the discretion to sentence defendant within this range.
The aggravating and mitigating factors were supported by credible evidence here and the sentence is reasonable. State v. Johnson, 42 N.J. 146, 162 (1964). The aggravating factors preponderate and justify imposition of a sentence at the top of the range. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). Therefore, defendant is not entitled to relief.
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