On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 03-03-0464 and 03-07-1379.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Espinosa.
Defendant Darryl Hammary appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
On October 15, 2003, defendant pled guilty to count one of Indictment No. 03-03-0464, which was amended to charge the third-degree crime of conspiracy to commit theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4, in exchange for the State's agreement to recommend a flat five-year prison sentence, as well as dismiss the remaining eleven counts of the indictment. On January 23, 2004, defendant was sentenced in accordance with the negotiated plea agreement to a flat five-year prison term and ordered to pay $1,385.00 in restitution to the victim of the theft.
On June 14, 2004, following denial of his motion to suppress evidence obtained in two searches, defendant pled guilty to three counts of a twenty-three count indictment (Indictment No. 03-07-1379): third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-4 (count 1); third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count 16); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count 18), as amended from third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). In exchange for his plea, the State agreed to recommend a sentence of eight years imprisonment with four years of parole ineligibility on count 18, to run concurrent with the sentence defendant was already serving. On October 29, 2004, defendant was sentenced to eight years with a four-year period of parole ineligibility on count 18; a five-year term with a two-year period of parole ineligibility on count 1; and a flat five-year term on count 16. All sentences were to run concurrent. Restitution of $3,596.35 was ordered. The remaining charges were dismissed.
Defendant appealed only his judgment of conviction on Indictment No. 03-07-1379. He contended, among other issues, that he did not knowingly enter his plea because he circled on the plea form the answer "No" to the question of whether he was pleading guilty to a charge that required a mandatory period of parole ineligibility. We rejected this argument, finding:
Here, defendant pled guilty to a Graves Act offense which requires a period of parole ineligibility. The plea agreement and the statements on the record at the plea hearing made abundantly clear that defendant's sentence could include a four-year period of parole ineligibility. Defendant therefore was well aware that the sentence he was facing included a period of parole ineligibility, regardless of the answer he gave to the question on the plea form. [State v. Hammary, No. A-2919-04T4 (App. Div. June 27, 2006) (slip op. at 19).]
We affirmed defendant's conviction and sentence. Id. at 20.
Thereafter, the Supreme Court granted defendant's petition for certification limited solely to the sentencing issue raised by defendant and summarily remanded the case to the trial court for resentencing in light of State v. Natale, 184 N.J. 458 (2005). State v. Hammary, 188 N.J. 571 (2006). On remand, the court imposed the same sentence, finding no new aggravating or mitigating factors and that the original sentence was imposed without any consideration of presumptive terms. There was no appeal from this sentence.
Defendant filed a timely PCR petition, arguing that his sentences under both indictments were illegal because the court failed to consider, and counsel failed to effectively argue, mitigating factor number six, N.J.S.A. 2C:44-1(b)(6) (that "[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained"). Defendant also argued that he was entitled to a Natale resentencing under Indictment No. 03-03-0464 because the sentencing court erroneously considered aggravating factors to enhance his sentence above the presumptive term that were not found by a jury. The judge denied defendant's PCR petition, reasoning in part:
In this application, the defendant does not truly argue that his sentences under both indictments were illegal. Rather, defendant argues that his sentences were excessive due to the sentencing court's weighing and application of the aggravating and mitigating factors. However, alleged excessive sentences not otherwise authorized by the Code of Criminal Justice may only be raised on direct appeal from the conviction, and [are] not an appropriate ground for post-conviction relief. [citation omitted].
There is no showing that had the mitigating factor for restitution been applied, defendant would have received lesser sentences, as the court imposed both sentences ...