March 24, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS GERRARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-08-1367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 4, 2009
Before Judges Wefing and LeWinn.
Defendant appeals from the September 10, 2007 order of the trial court denying his petition for post-conviction relief (PCR). We affirm.
Tried to a jury in March 2002, defendant was convicted of second-degree attempted theft, N.J.S.A. 2C:20-3; third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a). He was sentenced to an aggregate term of fifteen years in prison with a seven-year period of parole ineligibility.
In an unpublished opinion on May 19, 2004, we affirmed defendant's convictions and sentence. State v. Gerrard, No. A-5635-01, (App. Div. May 19, 2004) (slip op. at 6 to 11). The Supreme Court denied defendant's petition for certification, State v. Gerrard, 181 N.J. 287 (2004), and his motion for reconsideration. State v. Gerrard, 182 N.J. 145 (2004).
Defendant filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. §2254(a), in the United States District Court for the District of New Jersey. In that petition, defendant raised ten claims of trial error, and two claims that his sentence was "grossly excessive" and "illegal." On January 17, 2007, the court issued a decision staying defendant's Petition and holding it in abeyance to afford defendant the opportunity to exhaust his claims in state court. Gerrard v. Parrish, No. 04-6056 (D.N.J. January 17, 2007) (slip op. at 24).
On January 26, 2007, defendant filed a pro se PCR petition raising the following two claims: (1) illegal sentence; and (2) prosecutorial misconduct in vouching for the credibility of the State's witnesses. Defendant stated in his petition that he was "alerting the [c]court at this juncture, that [he] shall proceed Pro-se [sic]." Within the petition itself, defendant further certified that he was "[s]eeking to appeal Pro-se [sic] in this [p]etition[.]" Defendant submitted a lengthy memorandum of law. With respect to his prosecutorial misconduct claim, defendant cited the following excerpt from the prosecutor's summation as evidence of his improper vouching for the credibility of his witnesses:
Now, with regard to some of the inconsistencies within the testimony..., remember one thing, we're dealing with an event that happened two years ago. This is May 13th, 2000[,] this is March 7th, 2002. All right.
People's recollections [are] going to be a little bit different overtime [sic]. No dispute about that.
But one thing that you have to keep in mind, and keep in the back of your head were people credible, were they truthful? And in this case from the statement, from the salesperson, Miss Calandriello, she was credible. Very credible. She pointed out where she was, she pointed out the video, she pointed out the defendant. Very credible, okay.
With regard to Mr. Sinnott, he indicated that the defendant actually banged on and looked at him like, you know, everything's all right. You can go back to doing what you want to do.
He was very credible.
Now, Officer Braxton and Officer Williams, they're very credible. Very credible indeed.
Now, as the car -- the defense [sic] is attempting to get in the motor vehicle and Officer Braxton credibly testified that what he was doing was grab him to keep him from going into the car, gone.
Why do they say take him down? Because he was struggling. Everyone stated who was outside of the mall from the security officers, Officer Lopez to Officer Williams to Officer Braxton, they all say especially the same thing. It's consistent. It's truthfulness.
Regarding his sentencing claims, defendant contended that the trial judge improperly weighed the aggravating factors, in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). There the Supreme Court held that, to comply with the Sixth Amendment, a judge may not sentence a defendant beyond the "statutory maximum[,]" which is the maximum sentence a judge "may impose without any additional findings." Id. at 303-04, 124 S.Ct. at 2537, 159 L.Ed. 2d at 413-14. See State v. Natale, 184 N.J. 458, 476 (2005) (adopting the Blakely analysis).
On September 7, 2007, Judge Paul F. Chaiet, who had also presided over defendant's trial and sentencing, heard argument on his PCR petition. At the outset, the judge noted that defendant was "appearing on behalf of himself[,]" to which defendant responded, "Thomas Ger[r]ard, pro se."
Following oral argument, the judge denied defendant's petition. With respect to the prosecutorial misconduct claim, the judge first noted that defendant was barred from raising this claim on PCR, as he could have raised this issue on direct appeal. R. 3:22-4. Nonetheless, the judge addressed the claim on the merits and ruled:
I've had an opportunity to review the transcript again, and I really don't think that there's anything improper about what the prosecutor said or did in the particular case. He was referring to the evidence and the testimony and during that particular time, he said that the state's witnesses, in essence, were truthful.
And, you know, if you look at it in a simplistic fashion, the defense was saying they were contrived. And the prosecutor has a right to vigorously argue his case and when the defense is saying, look, you shouldn't accept the testimony of the witnesses below, then I think the prosecutor's entitled to respond, and he wasn't using anything outside the record to vouch for their credibility. I didn't see that in reading the transcript at all. So even if [defendant] was procedurally not barred, I... don't find any merit to his application.
With respect to defendant's sentencing arguments, the judge first noted that this court had rejected his excessive sentence argument on direct appeal. Nonetheless, the judge acknowledged that he was obligated to re-sentence defendant in light of State v. Natale. The judge further acknowledged that he had to sentence defendant "without regard to the presumptive sentence."
In re-sentencing defendant, the judge noted that, at the time of the original sentencing defendant was eligible for an extended term under N.J.S.A. 2C:44-3(a), as a "persistent offender[,]" but that the judge had found "adequate sentencing flexibility within the charges... to impose an appropriate sentence[,]" and that an aggregate sentence of fifteen years sentence would adequately protect the public.
The judge then found "the same aggravating and mitigating factors... as [he] indicated at the time that [he] imposed the sentence." Noting that Natale "indicates that [he is] not supposed to deviate from the aggravating and mitigating factors that [he] found[,]" and observing that he "found no mitigating factors[,]" the judge "decline[d] to change the sentence that [he] originally imposed[,]" adding: "The presumptive sentence played no part." Judge Chaiet thereupon imposed the same sentence as at the original hearing.
On appeal, defendant raises the following issues for our consideration:
THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE ON MR. GERRARD AND A NEW SENTENCE MUST BE IMPOSED OR, IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED UNDER STATE V. NATALE, 184 N.J. 458 (2005)
MR. GERRARD IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL In a pro se supplemental brief, defendant advances these additional contentions:
TRIAL COURT DENIED APPELLANTS [SIC] POST CONVICTION PETITION WITHOUT SEPARATELY STATING ITS FINDING OF FACTS OR CONCLUSIONS OF LAW IN AN APPROPRIATE ORDER CONSISTENT WITH COURT RULES
DEFENDANT IS ENTITLED TO A DECREASE IN SENTENCE CONSISTENT WITH LANDMARK, CONTROLLING, DECISIONS RENDERED IN APPRENDI, BLAKELY, NATALE, AND PIERCE BECAUSE IT EXCEEDED THE PRESUMPTIVE TERM
Having reviewed these contentions in light of the record and the controlling legal principles we are satisfied that they are without merit. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Chaiet in his oral decision rendered from the bench at the conclusion of the PCR hearing on September 7, 2007. We add only the following comments.
We are satisfied that Judge Chaiet properly re-sentenced defendant in accordance with the dictates of Natale, which states that the "trial court must determine whether the absence of the presumptive term in the weighing process requires... a different sentence." Natale, supra, 184 N.J. at 495-96. The fact that the judge imposed the same sentence as he had done previously does not, as defendant contends, render his sentence illegal. As noted, defendant was eligible for extended term sentencing as a persistent offender; this would have rendered him subject to a possible maximum term of twenty years, N.J.S.A. 2C:43-7(a)(3); instead he received a maximum of fifteen years. No further discussion of this issue is warranted. R. 2:11-3(e)(2).
Defendant contends for the first time on appeal that his trial attorney rendered ineffective assistance by failing to object to the challenged portions of the prosecutor's summation. Below, defendant challenged these summation comments as a violation of his constitutional rights; at no time did he claim that trial counsel was ineffective for failing to object to those comments. Therefore, we will not consider this issue.
See State V. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
Defendant's remaining contentions in his pro se brief are without sufficient merit to warrant discussion in this opinion.