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State v. Berger

Superior Court of New Jersey, Appellate Division

August 15, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
WILLIAM C. BERGER, a/k/a CRAIG BERGER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 24, 2013

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-04-01169.

William C. Berger, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Axelrad and Sapp-Peterson.

PER CURIAM.

In this pro se appeal, defendant, William C. Berger, appeals from two orders entered by the trial court, a September 20, 2011 order denying his motion for reduction of the ten-year aggregate custodial sentence imposed upon him for first-degree robbery, N.J.S.A. 2C:15-1, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and, inconnection with a separate indictment, third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a, as well as a disorderly persons conviction contained in an accusation. In exchange, the State agreed to dismiss all remaining charges contained in the two indictments and not to seek an extended term, for which defendant was eligible. On appeal, defendant raises the following point for our consideration:

POINT I
THE PETITIONER[']S SENTENCE IS UNCONSTITUTIONAL AND VIOLATES THE 14TH AMEND U.S. CONSTITUTION OF DUE PROCESS BY DOUBLE COUNTING FACTORS.
POINT II
THE PETITIONER[']S SENTENCE IS UNCONSTITUTIONAL AND VIOLATES THE PRESUMPTIVE GUIDELINES AS PROVIDED IN BLAKELY V. WASHINGTON AND IN STATE V. NATALE.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION BY NOT STATING THE REASONS FOR GOING OVER THE PRESUMPTIVE ON COUNT (4) OF THE INDICTMENT.
POINT IV
THE TRIAL COURT IMPOSED A[N] ILLEGAL SENTENCE.

We have considered the points in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

Defendant filed his motion seeking a reduction in his sentence on June 30, 2011, more than one year after the court entered the judgment of conviction on May 10, 2010. Rule 3:21-10 requires that a motion for reduction or change in sentence be filed "not later than 60 days after the date of the judgment of conviction." Judge Michael L. Ravin, while noting the exceptions contained in Rule 3:21-10b(4) and (5), which permit motions to correct an illegal sentence to be filed at any time, found that defendant's application did not fall within any of the exceptions. Thus, the judge properly found the motion was time-barred.

Likewise, defendant's claim that his sentence is illegal because it was based upon the court's consideration of facts not admitted by him in his guilty plea and therefore based upon judicial fact finding, ignores the Supreme Court's holding in State v. Thomas, 188 N.J. 137 (2006), that "[i]mplicit in a sentencing court's assessment of the defendant's risk of recidivism (factor (3)), the seriousness and extent of a defendant's prior criminal record (factor (6)), and the need to deter defendant and others (factor (9)) is a qualitative assessment that we want and expect the court to make." Id. At 153 The court's consideration of these three aggravating factors is amply supported by the record

In the absence of the negotiated plea agreement which the court accepted defendant faced in excess of forty years imprisonment The ten-year sentence imposed as Judge Ravin noted was the minimum sentence authorized under the Criminal Code for a first-degree robbery conviction Nor did the judge impermissibly double count the aggravating factors by considering the elements of the crimes for which defendant was convicted as aggravating factors See State v Kromphold 162 N.J. 345 356 (2000)

Finally the five-year parole supervision imposed which is triggered upon completion of the custodial portion of his sentence is an "integral part" to a No Early Release Act NJSA 2C:43-72 sentence which the Court has upheld as ensuring that violent offenders are not released into the community without supervision See State v Friedman 209 N.J. 102 120 (2012)

Affirmed.


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