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State v. Carstarphen

November 13, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FLOYD CARSTARPHEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 90-05-1381.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 26, 2009

Before Judges Lisa and Alvarez.

Defendant was convicted of attempted murder and related offenses and sentenced in 1991 to an aggregate term of life imprisonment with a twenty-five-year parole disqualifier (a mandatory extended term as a second Graves Act offender) see N.J.S.A. 2C:44-3d. After various appellate and post-conviction relief (PCR) proceedings over the years, which we will describe, defendant moved for correction of an illegal sentence, which was denied on May 15, 2008. Defendant now appeals from denial of that motion. He makes the following arguments:

POINT I

APPELLANT'S 6TH AMENDMENT RIGHTS WERE VIOLATED AND PRODUCED AN ILLEGAL SENTENCE WHEN THE JUDGE AND NOT A JURY DETERMINED SENTENCE FOR EXTENDED TERM.

POINT II

THE IMPOSITION OF A MANDATORY EXTENDED TERM AS A SECOND GRAVES ACT OFFENDER WITHOUT AN IN DEPTH HEARING VIOLATED APPELLANT[']S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTION[S].

We reject these arguments and affirm.

We need not set forth the factual circumstances underlying the offenses for which defendant was convicted. It is sufficient to note that defendant shot his victim, thus making his attempted murder conviction a Graves Act offense. Judge Wingate presided over defendant's jury trial in January 1991. When the matter came on for sentencing on April 5, 1991, the State moved for a mandatory extended term because defendant had committed a prior Graves Act offense. Judge Wingate granted the motion and sentenced defendant for attempted murder to life imprisonment with a twenty-five year parole disqualifier. All of his other convictions either merged or were sentenced concurrently.

Defendant appealed. One of his arguments on appeal was that his sentence was excessive. In an unpublished opinion, we rejected that argument and affirmed defendant's conviction and sentence (with the exception of an additional merger that we ordered, which is not relevant to this appeal). State v. Carstarphen, No. A-4626-90T4 (App. Div. April 21, 1993). Defendant's petition for certification was denied. State v. Carstarphen, 134 N.J. 475 (1993).

In 1996, defendant filed a PCR petition. He asserted ineffective assistance of counsel, but did not raise sentencing issues. After conducting an evidentiary hearing, Judge Baxter denied the petition. In an unpublished opinion, we affirmed denial of PCR. State v. Carstarphen, No. A-4713-96T4 (App. Div. March 23, 1999). Defendant's petition for certification was denied. State v. Carstarphen, 162 N.J. 131 (1999).

In 2004, defendant filed a motion to correct an illegal sentence. Judge Baxter denied the motion on October 27, 2004. However, defendant has not furnished us with a record of the motion proceedings. Therefore, we do not have the benefit of defendant's moving papers, which would include the specific relief requested and the basis upon which he sought that relief, a transcript or written statement of reasons supporting the order denying ...


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