STATE OF NEW JERSEY v. ALEXANDER MAZZA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3187-04T43187-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXANDER MAZZA,

Defendant-Appellant.

_____________________________________________

 

Submitted November 16, 2005 - Decided

Before Judges Stern and Fall.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 96-04-0656.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Mark Zavotsky, Designated Counsel,

on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief. Defendant attacks his sentence on guilty pleas to counts of four indictments aggregating fifteen years, with six years to be served before parole eligibility. The plea agreement expressly provided that the sentence could be made to run consecutive to a sentence defendant was serving at the time, and concurrent to a sentence to be imposed on a separate matter on which he was tried in absentia.

On December 4, 1998, defendant was sentenced to a presumptive seven-year sentence with a parole ineligibility term of three years on one aggravated arson charge, and an eight-year sentence on a separate second degree aggravated arson offense, with three years to be served before parole eligibility. The two sentences were made to run consecutive to each other and consecutive to the sentence defendant was then serving. Defendant also received concurrent five-year sentences for distribution of CDS and conspiracy to commit credit card theft to which he pled guilty and the CDS offense for which he had been found guilty at trial. Two months after sentencing, a motion for reconsideration of the sentence was denied on February 16, 1999. Defendant's application for post-conviction relief was thereafter denied on December 10, 1999. The record before us does not include either post-judgment order, but the notice of appeal is limited to the denial of the "order denying defendant's motion to reconsider sentence and petition for post-conviction relief which was entered on December 17, 2004."

On this appeal defendant argues:

POINT I THE TRIAL JUDGE RENDERED AN ILLEGAL SENTENCE

WHEN HE IMPOSED A GREATER THAN PRESUMPTIVE

TERM UPON THE DEFENDANT BY WAY OF FACTS NOT OF THE RECORD

POINT II THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE

OF COUNSEL WHEN TRIAL COUNSEL FAILED TO PUT

FORTH HIS STATUS AS A YOUTHFUL OFFENDER

CONSEQUENTLY EXPOSING HIM TO CONSECUTIVE

SENTENCING

POINT III THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE

WHEN THE TRIAL COURT FAILED TO FOLLOW THE

SUPREME COURT GUIDELINES OF THE SENTENCING

CODE WITH REGARD TO CONSECUTIVE SENTENCING

We find these arguments to be without merit and warranting only the following comment. R. 2:11-3(e)(2).

The arguments directed to sentences within the lawful range do not present issues of sentence legality cognizable under R. 3:22-2(c). See State v. Ervin, 241 N.J. Super. 458, 471-72 (App. Div. 1989), certif. denied, 121 N.J. 634 (1990); State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

Defendant's Blakely argument (see Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)), must fail because it was not timely raised. In fact, it was not addressed in the PCR petition or in the argument on defendant's petition for post-conviction relief. In State v. Natale, 184 N.J. 458, 494 (2005), our Supreme Court gave "pipeline retroactivity" to its holding which applies only to "defendants with cases on direct appeal as of the date [Natale was decided] and to those defendants who raised Blakely claims at trial or on direct appeal . . . ." There is no indication in the record that defendant did that. At the PCR hearing, defendant's challenge to the sentence emphasized that he should have been sentenced as a youthful offender, that there was a presumption against the imposition of consecutive youthful offender sentences, and that in any event the consecutive sentences were unlawful.

Defendant asserts that he received ineffective assistance of counsel because his trial attorney failed to argue that he should be sentenced as a youthful offender. See N.J.S.A. 2C:43-5. There is no preference under the Code of Criminal Justice in favor of youthful offender sentences as there was before the Code was enacted. State v. Styker, 262 N.J. Super. 7, 21 (App. Div.), aff'd o.b., 134 N.J. 254 (1993); State v. Berger, 258 N.J. Super. 553, 562 (App. Div. 1992). In any event, defendant was over twenty-six years at the time he was sentenced for these offenses on December 4, 1998. He was born on April 4, 1971, and was not under twenty-six at the time of sentencing, as required to receive an indeterminate term under N.J.S.A. 2C:43-5. The guilty plea was entered on September 21, 1998, and the sentence was imposed on December 4, 1998. There is no suggestion of any undue delay or misconduct intended to adjourn the matter until after defendant turned twenty-six. To the contrary, defendant failed to appear for trial on a CDS charge and was tried in absentia in March 1997, and the record reflects long and difficult negotiations to resolve all pending charges.

Finally, imposition of a consecutive sentence without the proper statement of reasons does not make a sentence "illegal." See Ervin, supra, 241 N.J. Super. at 474; Flores, supra, 228 N.J. Super. at 592. In any event, the arson convictions related to separate and independent events, and the sentencing judge provided reasons for the imposition of consecutive sentences, citing State v. Yarbough, 100 N.J. 627 (1985), certif. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

 
Affirmed.

Defendant reserved the right to argue for the imposition of concurrent sentences.

The record before us contains neither a page of one of the indictments nor the plea form.

The judgment reflects an eighteen-month sentence on the conspiracy charge, which was a fourth degree crime.

The PCR judge at one point inadvertently said defendant "was 25 years old" in the context of noting he was "not a youthful offender." At sentencing, it was said "[h]e's now twenty-seven."

We reversed the conviction because of the absence of a knowing waiver of the right to jury trial. State v. Mazza, 33- N.J. Super. 467, 470-72 (App. Div. 2000). There is no suggestion in the record of the plea that the reversal impacted on the pleas. See State v. DiLoreto, 362 N.J. Super. 600, 616 n.6 (App. Div. 2003), aff'd, 180 N.J. 264 (2004).

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A-3187-04T4

December 2, 2005