May 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IRONE WATFORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 94-06-904.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 19, 2010
Before Judges Lisa and Coburn.
Defendant appeals from denial of his petition for post-conviction relief (PCR), also denominated a motion to correct an illegal sentence. The appendix provided to us is incomplete. Our description of the procedural history will therefore be based upon the recitation of that history in appellant's brief, with which the State concurs, but much of which is not supported by documentation in the appendix.
Defendant was convicted in 1997 of multiple counts in an indictment, including aggravated sexual assault, robbery, carjacking, and kidnapping. He was sentenced on September 22, 1997 to an extended term of life imprisonment subject to a twenty-five year parole disqualifier for aggravated sexual assault. For robbery, he was sentenced to twenty years imprisonment with a ten-year parole disqualifier. For carjacking, he was sentenced to thirty years imprisonment with a ten-year parole disqualifier. For kidnapping, he was sentenced to thirty years imprisonment with a fifteen-year parole disqualifier. All sentences were ordered to be served consecutively, thus resulting in an aggregate sentence of life plus eighty years imprisonment with a sixty-year parole disqualifier.
On March 31, 2000, we affirmed defendant's convictions and sentence, and on July 7, 2000, the Supreme Court denied defendant's petition for certification. On October 19, 2000, defendant filed his first PCR petition, which was denied on January 17, 2002. On June 16, 2003, we affirmed, and on October 29, 2003, the Supreme Court denied defendant's petition for certification.
Defendant filed a petition for habeas corpus relief in the United State District Court, which was denied on April 27, 2007.
On April 9, 2009, defendant filed the PCR petition, or motion to correct an illegal sentence, which is the subject of this appeal. On May 29, 2009, Judge Michael L. Ravin denied the petition without granting an evidentiary hearing. For reasons that are unclear to us, the matter was also considered and denied by Judge Camille M. Kenny on July 15, 2009, also without a hearing.
The notice of appeal, which is dated July 13, 2009 and was filed on July 17, 2009, states that review is sought from Judge Ravin's order of May 29, 2009. However, because Judge Kenny's decision and order have also been furnished to us, we deem the appeal to include that order as well.
In his appellate brief, filed July 17, 2009, defendant raises the following arguments:
THE DEFENDANT-APPELLANT SHOULD BE ALLOWED TO PROCEED AS AN INDIGENT ON APPEAL.
THE DEFENDANT-APPELLANT SHOULD BE ALLOWED TO FILE A NOTICE OF APPEAL NUNC PRO TUNC.
THE ASSIGNMENT OF COUNSEL SHOULD CONTINUE ON APPEAL.
THE LOWER COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION TO CORRECT AN ILLEGAL SENTENCE, PURSUANT TO RULE 3:22-12(a).
THE LOWER COURT ERRED IN DENYING THE PETITION BECAUSE THE JUDICIAL FACT-FINDING BY THE TRIAL COURT REGARDING THE FINDING OF A "NEED TO PROTECT THE PUBLIC" VIOLATES DEFENDANT'S RIGHT TO DUE PROCESS AND TRIAL BY JURY AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION TO CORRECT AN ILLEGAL SENTENCE SINCE DEFENDANT'S CLAIMS ENTITLE HIM TO RELIEF.
By order of August 18, 2009, we granted the relief requested in Points I and II, namely that defendant be allowed to proceed as an indigent and that his appeal be deemed filed as within time. In that order, we denied his request for appointment of counsel, the relief requested in Point III.
By leave granted, defendant was allowed to submit a supplemental brief, which was filed on September 25, 2009. In that brief, defendant elaborated on his arguments. Defendant attached to that brief the July 15, 2009 decision and order by Judge Kenny.
Defendant's PCR petition was limited to his argument that his sentence was illegal. His argument pertained to the extended term imposed on the aggravated sexual assault conviction. Because the sentence imposed was one authorized by statute, see N.J.S.A. 2C:43-7a(2) and -7b, illegality cannot be predicated on the basis that the sentence did not constitute a disposition authorized by the Code of Criminal Justice. Defendant contended that the sentencing judge misapplied the principles of State v. Dunbar, 108 N.J. 80 (1987), in imposing the extended term sentence. He further argued that under State v. Pierce, 188 N.J. 155 (2006), the Dunbar principles have been deemed constitutionally deficient and should not have been utilized in fashioning his extended term sentence.
We first note that defendant's sentence was affirmed on direct appeal. Issues pertaining to the sentence are therefore not subject to further review in a PCR proceeding. R. 3:22-5; R. 3:22-4. In addition to being procedurally barred, defendant's arguments lack substantive merit. We reviewed the sentencing transcript, and we are satisfied that the sentencing judge correctly applied the Dunbar principles. Further, because defendant's case left the direct appeal pipeline when the Supreme Court denied his petition for certification of our decision affirming his conviction and sentence in 2000, he cannot avail himself of the Pierce holding. In Pierce, the Court announced a new rule of law in light of recent decisions by the United States Supreme Court which "changed the Sixth Amendment landscape." Pierce, supra, 188 N.J. at 166. Accordingly, in dealing with discretionary extended term sentences, the Court in Pierce "import[ed] the Natale remedy." Id. at 172. That remedy was for resentencing, but was limited to cases pending on direct appeal (i.e. pipeline retroactivity). State v. Natale, 184 N.J. 458, 494 (2005).
Although defendant's sentence is harsh, it is not illegal. It has previously been affirmed. In the PCR proceeding, defendant did not establish a prima facie showing of the right to relief, and therefore there was no requirement for an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). Thus, there was no error in denying defendant an evidentiary hearing.
We affirm substantially for the reasons stated by Judge Ravin in his May 29, 2009 written decision, and by Judge Kenny in her July 15, 2009 written decision. Defendant's arguments on appeal lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
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