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State of New Jersey v. Jimmy Vargas

April 14, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JIMMY VARGAS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-02-00659.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 30, 2011

Before Judges Axelrad and J. N. Harris.

Defendant Jimmy Vargas appeals from the imposition of a revised aggregate sentence of thirty-six years imprisonment, which includes a contested second Graves Act extended term for second-degree possession of a weapon for an unlawful purpose. We affirm.

I.

Because defendant's conviction was previously affirmed by this court, State v. Vargas, No. A-1959-03T4 (App. Div. May 31, 2005) (Vargas I), we recite only those facts necessary for a determination of the sentencing issues in this appeal.

Following a jury trial in 2002, relating to events that occurred in 2000 in Camden, defendant was convicted of eleven offenses, including second-degree burglary, N.J.S.A. 2C:18-2 (count six) and second-degree possession of a weapon (a stolen gun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count fourteen). At sentencing, the trial court found that defendant was both a persistent offender and a second Graves Act offender, and qualified for extended terms on counts six and fourteen. As to the burglary offense in count six, the trial court imposed an eighteen-year term with a nine-year period of parole ineligibility concurrent to certain other counts. Regarding the firearm offense in count fourteen, the court imposed another eighteen-year custodial term, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run consecutive to count six. Defendant's initial aggregate sentence was thirty-six years with a twenty-four year, nine-month, and twenty-three-day period of parole ineligibility.

On appeal of those convictions and sentences, we held, "[w]ith the exception of a claim under State v. Meekins, 180 N.J. 321 (2004), that the State concedes, we affirm defendant's convictions and sentence. We remand for resentencing on count fourteen." Vargas I, supra, slip op. at 5. In July 2005, defendant was re-sentenced by a different judge on count fourteen as a persistent offender -- not as a second Graves Act offender -- to a discretionary extended term of eighteen years with a nine-year minimum term before parole. The aggregate custodial term became thirty-six years with eighteen years of parole ineligibility.

On appeal for a second time with this court, we remanded again, "at the request of both counsel . . . for resentencing of [count fourteen] in conformity with State v. Thomas, 188 N.J. [137] (2006) (mandatory extended term, Graves [Act] sentence)." State v. Vargas, No. A-1208-05T4 (App. Div. Feb. 6, 2007) (Vargas II).*fn1 In that third sentencing, the court treated count fourteen as worthy of a Graves Act extended term, and -- like the first sentence -- imposed a mandatory extended term of eighteen years with a nine-year parole disqualifier pursuant to N.J.S.A. 2C:43-6(c). The final aggregate sentence matched the second sentence, but for different reasons. This appeal followed.

II.

On appeal, defense counsel raises the following point:

POINT I: THE DEFENDANT'S EXTENDED-TERM GRAVES ACT SENTENCES MUST BE VACATED, PURSUANT TO APPRENDI V. NEW JERSEY, SHEPARD V. UNITED STATES AND STATE V. FRANKLIN, BECAUSE THE JUDGE RELIED ON A FACT NEITHER FOUND BY A JURY BEYOND A REASONABLE DOUBT NOR ADMITTED BY DEFENDANT. MOREOVER, DEFENDANT IS NOT SUBJECT TO A PERSISTENT-OFFENDER EXTENDED-TERM SENTENCE ON DOUBLE-JEOPARDY ...


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