July 6, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STANLEY L. NIBLACK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 03-05-0906 and 04-11-2696.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2011
Before Judges Espinosa and Skillman.
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Pursuant to a plea agreement that disposed of two indictments, defendant pled guilty to second-degree possession of controlled dangerous substance (CDS), heroin, with intent to distribute, N.J.S.A. 2C:35-5(b)(2); third-degree possession of CDS, heroin, within 1000 feet of school property with intent to distribute, N.J.S.A. 2C:35-7; second-degree distribution of CDS, heroin, N.J.S.A. 2C:35-5(b)(2); and second-degree conspiracy to distribute CDS, heroin, N.J.S.A. 2C:5-2 and 2C:35-5(a)(1). The court imposed an aggregate sentence of ten years with a fifty-four month parole ineligibility period on April 22, 2005.
Defendant filed a direct appeal, arguing only that his sentence was excessive. We affirmed the judgment of conviction by order filed October 17, 2006. The Supreme Court granted his petition for certification and summarily remanded the case for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005). See State v. Niblack, 189 N.J. 644 (2007). On remand, the same sentence was imposed.
On January 18, 2008, defendant, having earlier filed a pro se PCR petition, filed an amended PCR petition with the assistance of counsel. The PCR court denied defendant's petition by order dated August 8, 2008. In this appeal, defendant presents the following issues for our consideration:
AT THE HEARING CONDUCTED ON AUGUST 8, 2008, ADDRESSING DEFENDANT'S POST-SENTENCING MOTIONS, DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
AT THE HEARING CONDUCTED ON AUGUST 8, 2008, ADDRESSING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF, DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
THE COURT'S ACTION OF RE-SENTENCING DEFENDANT IN COMPLIANCE WITH THE SUPREME COURT'S REMAND ORDER PURSUANT TO STATE V. NATALE DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, HIS RIGHT OF ALLOCUTION, AND HIS RIGHT TO BE PRESENT FOR SENTENCING
After carefully reviewing the record and briefs, we are satisfied that none of these arguments have merit.
As a preliminary matter, it does not appear the argument in Point III, that defendant was denied the rights to allocution and to be present at his Natale resentencing, was presented to the PCR court.*fn1 Counsel advised the court that the relief defendant was seeking was not a new trial but rather, a reduced sentence based upon the strength of his ineffective assistance of counsel claims. Counsel argued defendant was denied effective counsel because his attorney failed to obtain an arresting officer's personnel file, failed to file certain motions, and "coerced" him into pleading guilty. In addition to his ineffective assistance of counsel claims, defendant made arguments directly related to his Natale resentencing: (1) "he should be sentenced to seven years in accordance with State [v.] Natale" and that "the Court violated his [Sixth] Amendment right to trial by jury by sentencing above the statutory maximum"; (2) "he should be resentenced according to State [v.] Natale because the Court inappropriately considered aggravating factors and did not give due consideration to mitigating factors"; (3) the court should either resentence him "according to State [v.] Natale or . . . apply the Fundamental Fairness Doctrine and dismiss the charges against him because the State committed misconduct by exaggerating defendant's conduct during the grand jury hearing and concealing exculpatory evidence"; (4) the State engaged in improper plea bargaining; (5) the court should "consider his participation in rehabilitation programs as a mitigating factor upon his resentencing"; (6) "the charges against him must be dismissed because the Brimage*fn2 guidelines . . . violate the Federal Constitution" in that their application reflects racial bias and the imposition of excessive sentences; and (7) the Brimage guidelines are "unconstitutionally vague and violate defendant's due process rights." In addition, counsel contended the State committed a Brady*fn3 violation in the grand jury proceeding. At no time was it argued that defendant was not present or was denied the opportunity to speak at his resentencing.
Moreover, his contention that he was denied these rights at resentencing is not supported by a certification. See Rule 3:22-10(c). Indeed, the absence of any statement that defendant was not present for the resentencing is glaringly absent in the statement of facts of the brief prepared by very able counsel. We do not consider arguments raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In addition, defendant has failed to present any factual basis for this court to consider his claim that he was denied the rights to be present and allocute at his Natale resentencing.
Finally, as a practical matter, we note that the PCR court lacked the discretion to grant the reduction in sentence defendant sought. As explicitly noted on his plea form, defendant pled guilty to charges carrying mandatory periods of parole ineligibility and mandatory extended terms, subject to the Brimage Guidelines promulgated by the Attorney General to address negotiated-sentence agreements under N.J.S.A. 2C:35-12. The prosecutor agreed to recommend concurrent sentences on the two indictments of ten years with a fifty-four month period of parole ineligibility and seven years with a forty-two month period of parole ineligibility. Accordingly, the sentencing court's discretion was limited by N.J.S.A. 2C:35-12, which provides in pertinent part:
The negotiated plea or post-conviction agreement may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility, a specified fine, a specified anti-drug profiteering penalty, or other disposition. In that event, the court at sentencing shall not impose a lesser term of imprisonment, lesser period of parole ineligibility, lesser fine or lesser anti-drug profiteering penalty than that expressly provided for under the terms of the plea or post-conviction agreement. [Emphasis added.]
The sentence imposed here was precisely that agreed to by the prosecutor, an aggregate sentence of ten years with a period of parole ineligibility of fifty-four months. Accordingly, the relief defendant sought was not legally available. See State v. Thomas, 392 N.J. Super. 169, 180-81 (App. Div.), certif. denied, 192 N.J. 597 (2007).
We are satisfied defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).