STATE OF NEW JERSEY v. THOMAS CLAUSO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2565-04T32565-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS CLAUSO,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 1, 2005 - Decided

Before Judges Lefelt and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Camden

County, Indictment No. 665-3-88.

Appellant, Thomas Clauso, submitted

a pro se brief.

Vincent P. Sarubbi, Camden County

Prosecutor, attorney for respondent

(Roseann A. Finn, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

For first-degree attempted murder, defendant Thomas Clauso was originally sentenced to an extended term of life imprisonment, with twenty-five years of parole ineligibility. This sentence was to run consecutive to defendant's sentence for third-degree aggravated assault of five years' imprisonment with two and one-half years of parole ineligibility. On defendant's direct appeal, we remanded for reconsideration of the consecutive sentence, but "affirmed in all other respects." Upon remand, Judge Fluharty modified the sentence to eliminate the consecutiveness feature, so that defendant's aggregate sentence became life with a twenty-five year parole disqualifier. Defendant's first petition for post-conviction relief (PCR) was dismissed as time-barred. Here, defendant appeals from Judge Brown's denial of his second PCR, raising two issues pertaining to the life sentence.

In defendant's first argument, he claims that "Judge Fluharty ignored the Appellate Division's opinion ordering that he give reasons for sentencing defendant to consecutive sentences re [State v. Yarbough, 100 N.J. 627, 630, cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986)]." Defendant asserts "that a closer look at the aggravating and mitigating factors would show that a sentence of life imprisonment was not warranted." He finally argues, without supportive statistics, that "[t]here isn't anybody in New Jersey who is serving a life sentence for attempted murder where there was no injury to person or property involved."

Defendant's second argument on PCR is that "Judge Brown improperly denied [defendant's] motion without considering the law that was in place at the time [he] was sentenced besides Blakely[v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)]." Defendant argues that he should have been sentenced for "this crime not the crime that could have happened but never did." In short, defendant asserts that considering what actually occurred, "[l]ife imprisonment is excessive."

Our function on appeal from denial of PCR based upon an excessive sentence is not to substitute our judgment for that of the sentencing judge. Rule 3:22-2(c) provides that PCR is available when the sentence imposed was "in excess of or otherwise not in accordance with the sentence authorized by law." To be worthy of PCR, therefore, the sentence must be illegal. See State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971).

Defendant's life term with twenty-five years of parole ineligibility is a legal and appropriate sentence that falls within the authorized range for an extended term sentence for first-degree attempted murder. N.J.S.A. 2C:43-7a(2); N.J.S.A. 2C:43-7c. Furthermore, Blakely, cannot be applied to this sentence, which was imposed in 1988. U.S. v. Booker, ___ U.S. ___, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005); see also State v. Natale, 184 N.J. 458, 484, 494 (2005) (conforming our sentencing scheme to Blakely's concerns, but retroactively applying only to cases in the "pipeline").

On defendant's direct appeal, we found that the sentencing judge did not clearly abuse his discretion in imposing the life sentence, State v. Roth, 95 N.J. 334, 363 (1984), and that there was "no reason to substitute our judgment for that of the court below." Plaintiff's current motion raises essentially the same issue we have previously rejected on direct appeal and the motion is also time-barred, as it was filed more than five years after imposition of the life sentence. R. 3:22-12.

 
Affirmed.

Defendant claims he did not seek PCR, but instead moved for the correction of an illegal sentence under R. 3:21-10(b)(3). Such motion is not permitted under the cited rule, and defendant's application is therefore properly reviewed as a PCR petition.

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A-2565-04T3

November 16, 2005