STATE OF NEW JERSEY v. MARK M. COLBERT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0135-05T40135-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK M. COLBERT,

Defendant-Appellant.

 

Submitted August 16, 2006 - Decided August 21, 2006

 
Before Judges Kestin and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-11-1600-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On November 18, 2004, a Passaic County grand jury indicted defendant, charging him with the following offenses: third-degree possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3) (count two); third-degree possession of a controlled dangerous substance, cocaine, with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count three); third-degree possession of a controlled dangerous substance, heroin, N.J.S.A. 2C:35-10a(1) (count four); third-degree possession of a controlled dangerous substance, heroin, with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3) (count five); third-degree possession of a controlled dangerous substance, heroin, with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count six); third-degree distribution of a controlled dangerous substance, heroin, N.J.S.A. 2C:35-5a(1) and 5b(3) (count seven); and third-degree distribution of a controlled dangerous substance, heroin, within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a (count eight).

Pursuant to a plea agreement, defendant pleaded guilty to counts three and eight and the court dismissed the remaining charges. The State recommended concurrent seven-year terms with a forty-two-month period of parole ineligibility. At the time defendant entered his plea, the court indicated that it would consider a five-year term with a three-year period of parole ineligibility if defendant was rejected from the drug court program, which he was.

At sentencing, the State requested that the court impose an extended term based on defendant's prior drug conviction. The judge, while finding that defendant was eligible for an extended term, nevertheless denied the State's motion and imposed a five-year prison term with three years of parole ineligibility on count three. The court imposed a similar, concurrent, sentence on count eight. The court found two aggravating factors: number six, the extent of defendant's prior record and the seriousness of the offenses; and number nine, the need for deterring defendant and others.

On appeal, defendant raises the following two legal issues:

POINT I

SINCE THE [STATE V. BRIMAGE, 153 N.J. 1 (1998)] GUIDELINES PROVIDE FOR MANDATORY MINIMUM SENTENCES WHICH ARE BASED ON FACTORS NOT FOUND BY A JURY BEYOND A REASONABLE DOUBT, AND SINCE THESE MANDATORY SENTENCES ARE BINDING ON ALL SENTENCING JUDGES, THEY RUN AFOUL OF THE SIXTH AMENDMENT. THE GUIDELINES MUST THUS BE CONSIDERED AS ADVISORY PROVISIONS THAT RECOMMEND RATHER THAN REQUIRE THE IMPOSITION OF PARTICULAR SENTENCES IN RESPONSE TO DIFFERING SETS OF FACTS, TO BRING THEM INTO CONFORMANCE WITH THE SIXTH AMENDMENT PURSUANT TO UNITED STATES V. BOOKER[, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)]. FURTHERMORE, THE PRESUMPTIVE SCHEME UPON WHICH THE GUIDELINES ARE BASED DOES NOT CONFORM WITH THE REQUIREMENTS OF STATE V. NATALE[, 184 N.J. 458 (2005)], THUS ENTITLING DEFENDANT TO A REMAND FOR RESENTENCING. (Not Raised Below).

POINT II

DEFENDANT'S SENTENCE OF 5 YEARS WITH 3 YEARS OF PAROLE INELIGIBILITY, IMPOSED IN THE ABSENCE OF A WRITTEN MOTION PURSUANT TO N.J.S.A. 2C:43-6f, MUST BE REMANDED FOR RESENTENCING PURSUANT TO THE BRIMAGE GUIDELINES.

We have carefully reviewed the record and have considered defendant's arguments in light of the applicable law. We are satisfied that the arguments defendant advances are without merit and do not warrant extensive discussion in a full written opinion. R. 2:11-3(e)(2).

The court did not depart from the Brimage guidelines. The three-year period of parole ineligibility was mandatory, see N.J.S.A. 2C:43-6f, and the record does not justify its waiver. The trial court declined to impose an extended term. The judge properly weighed the aggravating and mitigating factors, and applied correct legal principles in exercising his discretion. See State v. Roth, 95 N.J. 334, 363-65 (1984).

Defendant's argument that the Brimage guidelines are inconsistent with the United States Supreme Court's decisions in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and Booker, supra, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621, and the New Jersey Supreme Court decision in State v. Natale, 184 N.J. 458 (2005), are similarly without merit. Cf. State v. Pierce, ___ N.J. ___ (2006); State v. Thomas, ___ N.J. ___ (2006).

 
Affirmed.

The judgment of conviction lists only aggravating factor number nine. Consequently, we remand to the Law Division to amend the judgment of conviction to include aggravating factor number six.

(continued)

(continued)

5

A-0135-05T4

 

August 21, 2006