On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-01-0001.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2009
Before Judges Carchman and Ashrafi.
Defendant Fernando Mejia filed a notice of appeal from an order of October 26, 2007, denying his motion for reduction of sentence under Rule 3:21-10. In his brief and appendix on this appeal, defendant has not presented arguments or the relevant record to permit review of the sentencing court's decision. We dismiss the appeal. See In re Zakhari, 330 N.J. Super. 493, 494-95 (App. Div. 2000) (dismissal of appeal for procedural deficiencies).
In 1998, defendant pleaded guilty to aggravated manslaughter and attempted murder, and he was sentenced to twenty-one years in prison, with eighty-five percent of the sentence to be served before parole under the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed his sentence on direct appeal pursuant to Rule 2:9-11. State v. Mejia, A-3974-98T4 (App. Div. Oct. 4, 1999), certif. denied, 163 N.J. 80 (2000).*fn1
Defendant then filed a petition for post-conviction relief (PCR), which the trial court denied. We affirmed the denial. State v. Mejia, A-1737-00T4 (App. Div. Feb. 4, 2002), certif. denied, 174 N.J. 42 (2002). Two years later, we affirmed denial of a second PCR petition. State v. Mejia, A-1972-03T5 (App. Div. July 13, 2004).
On this appeal, defendant filed a case information statement indicating that he would raise issues pertaining to denial of his motion for release from custody under Rule 3:21-10(b)(2) for illness or infirmity. Because defendant failed to prosecute his appeal, we dismissed the appeal twice. On February 5, 2009, we reinstated the appeal on the condition that defendant's brief and appendix be received before March 9, 2009. They were received on March 12, 2009, but we accepted the filings and scheduled the matter for disposition.
Contrary to explicit instructions in one of our prior orders, defendant has not included the trial court's written decision of October 25, 2007, explaining its denial of his motion for release under Rule 3:21-10(b)(2). In fact, defendant's brief does not address any issue pertaining to his application for release because of illness or infirmity. Rather, defendant raises the following argument:
DEFENDANT'S SENTENCE SHOULD BE VACATED AS IT WAS IN VIOLATION OF HIS EXPECTATION (19.55 MONTHS), AND IT EXCEEDED THE THEN "PRESUMPTIVE" TERM ALLOWABLE BASED ON FACTS THAT LAY OUTSIDE THE RECORD, IN VIOLATION OF Blakely v. Washington, 124 S.Ct. 2531 (2004) AND THE DUE PROCESS CLAUSE.
Defendant admits that this argument raises "a successive petition for post-conviction relief." It is barred by Rules 3:22-4 and -5, prohibiting repetitious petitions for PCR on grounds that were or could have been raised in earlier proceedings. Defendant's argument was either decided or could have been argued and decided in the earlier direct appeal of defendant's sentence or his two earlier PCR petitions. See State v. McIlhenny, 357 N.J. Super. 380, 386-87 (App. Div.), certif. denied, 176 N.J. 430 (2003). To the extent that defendant makes sentencing arguments regarding the consideration of aggravating or mitigating factors, those arguments do not have sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Also, defendant cannot convert on appeal his motion under Rule 3:21-10(b)(2) into yet another PCR petition, which would also be untimely because it was filed more than five years after he was sentenced. See R. 3:22-12.
Finally, defendant's sentence was imposed several years before Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). After Blakely, the New Jersey Supreme Court abolished presumptive terms in our Criminal Code to comply with federal constitutional requirements. State v. Natale, 184 N.J. 458, 487-88 (2005). The Court held in Natale that its decision would have "pipeline retroactivity" and thus should be applied "to defendants with cases on direct appeal as of the date of [the] decision and to those defendants who raised Blakely claims at trial or on direct appeal." Id. at 494. Defendant ...