November 13, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FLOYD CARSTARPHEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 90-05-1381.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
APPELLANT'S 6TH AMENDMENT RIGHTS WERE VIOLATED AND PRODUCED AN ILLEGAL SENTENCE WHEN THE JUDGE AND NOT A JURY DETERMINED SENTENCE FOR EXTENDED TERM.
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 In an unpublished opinion, we rejected that argument and affirmed defendant's conviction and sentence (with the exception of an additional merger that we ordered, which is not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 the motion, or the order itself. Nevertheless, the parties do not dispute that the motion was made and denied.
Defendant subsequently made another motion to correct an illegal sentence, which was denied by Judge Holden on May 15, 2008 "in reliance upon the October 27, 2004 denial by Hon. Linda G. Baxter on the same grounds advanced by you in your recent application." Again, defendant has not furnished us with a record of the motion proceedings before Judge Holden. Apparently, however, Judge Holden concluded that the motion before him was a reassertion by defendant of entitlement to the same relief on the same grounds as that which had been previously considered and rejected by Judge Baxter, and that it was not meritorious.
In his appellate brief, defendant asserts two grounds upon which his sentence was illegal. First, he argues that he was denied his Sixth Amendment right to a trial by jury on matters that were instead considered by the sentencing court in imposing an extended term sentence. He relies on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Our Supreme Court applied the Blakely holding to the sentencing scheme in New Jersey's Criminal Code, and determined that, to the extent constitutionally required, the sentencing factors that would increase a sentence beyond the prescribed range will be applied "to defendants with cases on direct appeal as of the date of the [Court's] decision and to those defendants who raised Blakely claims at trial or on direct appeal." State v. Natale, 184 N.J. 458, 494 (2005). Thus, the Court did not grant full retroactivity to the newly-adopted sentencing principles, but granted only "pipeline retroactivity." Ibid. Defendant did not raise a Blakely issue on direct appeal, and his direct appeal ended in 1993, when the Supreme Court denied his petition for certification from this court's decision affirming his conviction and sentence. Therefore, defendant's case left the direct appeal pipeline twelve years before Natale was decided, barring the relief defendant seeks on Blakely grounds.
Defendant's second basis for alleging an illegal sentence is that prior to sentencing the judge did not conduct the hearing that is required to determine whether defendant was a second Graves Act offender. That argument is belied by the record. Judge Wingate did conduct such a hearing, at which it was undisputed that defendant had previously been convicted of a Graves Act offense. There was also no dispute that the crime for which defendant was being sentenced was a Graves Act offense.
It is clear to us that defendant's sentence was not illegal.
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