November 19, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
WALI PALMER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 20, 2013.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-06-1542.
Wali Palmer, appellant pro se.
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Special Deputy Attorney General/Acting Chief Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Simonelli.
Defendant Wali Palmer appeals from an October 31, 2011 order denying his motion to correct an illegal sentence. We affirm.
Following a jury trial, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count one), aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two), possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven), and unlawful possession of a weapon (the handgun), N.J.S.A. 2C:39-5(b) (count eight). He was sentenced on July 9, 1999, to an aggregate term of thirty years imprisonment with twenty-five-and-one-half years of parole ineligibility under the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2.
On direct appeal, we affirmed defendant's convictions and sentence. State v. Palmer, A-0129-99 (App. Div. Mar. 19, 2001), certif. denied, 169 N.J. 606 (2001). In that opinion, we summarized the facts as follows:
The convictions arise from a shooting in a bar in Atlantic City in which two men were shot. Defendant's friend, Junior (Jerry Cooper), died of a gunshot wound . . . . The second victim, Shawn Brantley, suffered a gunshot wound to the left thigh. Although there was considerable disagreement among the witnesses concerning the genesis of the dispute which preceded the gunfire, it was undisputed that defendant was the only person who drew and fired a gun.
Soon after the shooting, Atlantic City Police Officer Eugene Maier arrived at the bar. When Maier entered the bar, Brantley described the person who shot him as a black man wearing a black leather coat with white sleeves, blue jeans and dreadlocks. . . .Soon thereafter Officer Thomas Hahn noticed a man fitting this description, the defendant, riding a bicycle. At that time defendant was two blocks from the bar. . . . Hahn and another officer, Michael O'Hala, arrested defendant.
[Id. at 2-3.]
According to O'Hala, defendant "mumbled something, " and when O'Hala asked him what he had said, defendant responded, "I just seen the gun on the floor. I grabbed it and shot. I ran the f--- up out of there. Everyone telling me to leave, so I just ran." Id. at 3.
On September 13, 2001, defendant filed a timely petition for post-conviction relief (PCR), which was denied. Defendant appealed and we affirmed. State v. Palmer, No. A-2049-02 (App. Div. Feb. 11, 2004), certif. denied, 180 N.J. 357 (2004). Defendant then filed a petition in Federal District Court seeking a writ of habeas corpus, which was denied. Palmer v. Hendricks, Civil No. 04-4455 (FLW) (D.N.J. May 15, 2006), aff'd, 592 F.3d 386 (3rd Cir. 2010). Prior to the denial of his habeas corpus petition, defendant filed a second PCR application on April 19, 2005, which was denied without prejudice pending resolution of the habeas corpus petition. Defendant's third PCR application, filed on June 29, 2010, was denied because it was "untimely and thus procedurally barred." We affirmed. State v. Palmer, No. A-0252-10 (App. Div. June 15, 2011), certif. denied, 209 N.J. 95 (2011).
On August 16, 2011, defendant filed a pro se motion "to correct an illegal sentence pursuant to Rule 3:21-10(b)(5), " which the Law Division denied on October 31, 2011. The Law Division reasoned as follows:
[Defendant] claim[s] that the sentence imposed . . . is illegal in that the presumptive sentence specified in N.J.S.A. 2C:44-1(f)(1) was the only one authorized by a jury's verdict and that the trial court abused its discretion by imposing an illegal sentence in "double counting" aggravating factors and not counting any mitigating factors. . . .
Under State v. Natale, 184 N.J. 458 (2005), the progeny of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 403 (2004), the Supreme Court eliminated the "presumptive term" from the New Jersey sentencing scheme. It also afforded a remedy of resentencing without the presumptive term. The holding, however, was given limited retroactive effect . . . to those defendants with cases pending on direct appeal when Natale was decided, and to those who raised Blakely claims at trial or on direct appeal. Here, a Blakely claim was not raised at trial or on direct appeal. Rather, it was raised for the first time on a motion for [PCR]. Thus, this case does not fall within the Natale pipeline.
On appeal from the order denying defendant's motion to correct an illegal sentence, defendant presents the following arguments:
THE LOWER COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION WHERE HE ARGUED THAT THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN ILLEGAL SENTENCE WHEN THE COURT IMPROPERLY DOUBLE-COUNTED AN ELEMENTAL FACTOR TO REJECT AND OMIT VIABLE MITIGATING FACTORS, THUS DEPRIVING DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW. N.J. CONST. ART. I, PAR. 1; U.S. CONST. AMEND. XIV.
THE DEFENDANT SHOULD HAVE BEEN AFFORDED THE BENEFIT OF THE BLAKELY DECISION SINCE HE RAISED HIS CLAIM BEFORE NATALE II WAS DECIDED, THUS, "PIPELINE RETROACTIVITY" [E]FFECT SHOULD HAVE BEEN APPLIED TO THE MATTER AT BAR.
APPELLATE COUNSEL'S FAILURE TO ARGUE THAT THE TRIAL COURT ABUSED ITS DISCRETION BY DOUBLE COUNTING AN ELEMENTAL FACTOR TO REJECT AND OMIT RELEVANT MITIGATING FACTORS VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL. N.J. CONST. ART. I, PAR. 10; U.S. CONST. AMEND. VI.
These arguments are clearly without merit and warrant only the following comments. R. 2:11-3(e)(2).
"[A]n illegal sentence is one that 'exceeds the maximum penalty provided in the Code for a particular offense' or a sentence 'not imposed in accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)). In this case, defendant's twenty-two- year sentence on count one is within the ten-to-thirty-year permissible range for aggravated manslaughter NJSA 2C:11-4(c); his consecutive eight-year sentence on count two does not exceed the five-to-ten-year range for second-degree crimes NJSA 2C:43-6(a)(2); and his concurrent five-year sentence on count eight is within the three-to-five-year range for third-degree crimes NJSA 2C:43-6(a)(3) Therefore the trial court did not impose an illegal sentence Additionally on direct appeal we concluded that the trial court's "comprehensive analysis" of the aggravating factors and lack of mitigating factors was "well-supported by the record"; the imposition of a consecutive term was "manifestly appropriate"; and the court properly exercised its discretion "to fashion an appropriate sentence"
Furthermore there is no merit to defendant's claim that his sentence is contrary to the constitutional precepts announced in Blakely Those principles are only applicable to cases on direct appeal as of the date of our Supreme Court's decision in Natale Natale supra 184 N.J. at 494 Because defendant's sentence was affirmed on direct appeal in 2001 he is not entitled to be resentenced "unencumbered by the presumptive term" Id. at 492.