On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-03-0242.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 6, 2010
Before Judges Cuff and Waugh.
Defendant Gregory Oliver appeals from the denial of his second petition for post-conviction relief (PCR) and motion to vacate an illegal sentence. He is serving a life term without eligibility for parole following his conviction of N.J.S.A. 2C:15-1b, first degree robbery. He was also convicted of second and third degree aggravated assault, N.J.S.A. 2C:12-1b(1) and -1b(2). His conviction and sentence were affirmed. State v. Oliver, 298 N.J. Super. 538 (Law Div. 1996), aff'd, 316 N.J. Super. 592 (App. Div. 1998), aff'd, 162 N.J. 580 (2000). We also affirmed the denial of his first PCR. State v. Oliver, No. A-5400-01 (App. Div., Jan. 23), certif. denied, 180 N.J. 453 (2004).
On appeal, defendant raises the following arguments:
THE APPELLANT GREGORY OLIVER SUBMIT[S] THAT THE TRIAL COURT ERRED IN NOT GRANTING HIS PETITION TO VACATE AN ILLEGAL SENTENCE AS THE SENTENCE CLEARLY VIOLATES HIS FIFTH AND FOURTEENTH AMENDMENT TO DUE PROCESS UNDER BOTH STATE AND FEDERAL CONSTITUTIONAL PROVISIONS.
APPELLANT SUBMIT[S] THAT IF THE STATE CAN NOT DETERMINE THE FACTUAL BASIS FOR WHICH TO ENHANCE THE APPELLANT'S SENTENCE UNDER THE "THREE STRIKES LAW" THEN HE SHOULD BE REMANDED FOR SENTENCING PURSUANT AN EXTENDED TERM OF IMPRISONMENT AND/OR GIVEN THE OPPORTUNITY TO RETRACT THE 1979 PLEA AGREEMENT.
Defendant's sentence is founded on N.J.S.A. 2C:43-7.1a, commonly referred to as "three strikes and you're in." At issue in this petition is a 1979 robbery conviction. Defendant did not contest that this conviction was a qualifying conviction at the time of his sentencing in 1996. In fact, defendant's attorney conceded at the time that the 1979 conviction was a qualifying or predicate conviction.
In his second petition, defendant argued that imposition of a "three strikes" persistent offender term is illegal because there is a question whether the offense is commensurate with first degree robbery under the current penal code. Moreover, defendant asserts the sentencing judge relied on factors outside of the record contrary to Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed. 2d 205 (2005), and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed. 2d 607 (1990).
In his June 27, 2008 analysis, Judge Riva held that the sentencing did not contravene Shepard and Taylor. He also questioned whether the Shepard/Taylor rule should be applied retroactively, and further emphasized that the Supreme Court of New Jersey had expressly held that the 1979 conviction qualified as a "strike." Oliver, supra, 162 N.J. at 592. The judge also held that N.J.S.A. 2A:141-1, the statute governing ...