STATE OF NEW JERSEY v. DALLAS DIETRICH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1357-04T51357-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DALLAS DIETRICH,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 20, 2005 - Decided

Before Judges Lefelt and Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Camden

County, Indictment No. 0805-04-83.

Appellant, Dallas Dietrich, submitted

a pro se brief.

Vincent P. Sarubbi, Camden County

Prosecutor, attorney for respondent

(Robert K. Uyehara, Jr., Assistant

Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant is serving a life term of imprisonment, with a twenty-five year parole bar, for first-degree robbery. This is an appeal from Judge Thomas Brown's denial of defendant's third petition for post-conviction relief (PCR). In this petition, defendant argues that his extended-term sentence is disparate when compared with the ordinary-term fifteen-year sentence received by his co-defendant, and that State v. Natale, 184 N.J. 458 (2005), precluded the sentencing judge from utilizing aggravating factor N.J.S.A. 2C:44-1(a)(2) in imposing sentence.

Although we agree that excessive disparity may invalidate an otherwise lawful sentence, State v. Roach, 146 N.J. 208, 233, cert. denied, 519 U.S. 1021, 136 L. Ed. 2d 424, 117 S. Ct. 540 (1996), before dealing with this issue, we quickly dispose of the Natale argument. It is obvious that Natale, which found presumptive sentences unconstitutional only in that case and other cases on direct appeal, supra, 184 N.J. at 494, may not be applied to a twenty-three year old sentence.

Regarding defendant's disparity claim, when "the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing defendant in order to avoid excessive disparity." Roach, supra, 146 N.J. at 233. The sentencing judge must "impose a just sentence on the individual defendant in accordance with the sentencing guidelines while fulfilling the court's responsibility to achieve uniform sentencing when that is possible." Id. at 234.

In this case, defendant and co-defendant were not in similar circumstances and therefore did not warrant uniform sentences. Even though the co-defendant wielded the knife in the robbery, defendant was the ringleader and mastermind in planning and executing of the crime. While defendant was not under the influence of alcohol or drugs, co-defendant was using drugs at the time of the offense. Unlike defendant, co-defendant expressed remorse and was "extremely cooperative" with the State. Defendant's record was also much lengthier than co-defendant's, whose record did not include any prior incarceration, only periods of probation. Defendant's record not only included several prior periods of incarceration but also included parole violations. These differences completely support the harsher sentence that was imposed on defendant and justify Judge Brown's denial of defendant's PCR.

 
Affirmed.

(continued)

(continued)

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A-1357-04T5

September 29, 2005