STATE OF NEW JERSEY v. LEON LOWERY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1714-04T11714-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEON LOWERY,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 28, 2006 - Decided April 19, 2006

Before Judges Lefelt and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Union

County, Indictment No. 01-02-00218.

Appellant, Leon Lowery, submitted

a pro se brief.

Zulima V. Farber, Attorney General,

attorney for respondent (Adrienne

B. Reim, Deputy Attorney General,

of counsel and on the letter

brief).

PER CURIAM

On May 24, 2002, Judge Barisonek sentenced defendant Leon Lowery to a discretionary extended term of fifteen years imprisonment with six years of parole ineligibility for second-degree unlawful possession of cocaine with intent to distribute within 500 feet of a public park. N.J.S.A. 2C:35-7.1. Shortly after sentencing, defendant moved pro se for a new trial, raising ineffective assistance of counsel and other contentions. This motion was withdrawn because defendant wished "to proceed with [an] appeal through the normal course." By June 4, 2004, defendant had exhausted all direct appeals. On August 24, 2004, defendant moved to correct his allegedly illegal sentence, and after Judge Barisonek denied the motion, defendant appealed.

Defendant argues on appeal that the judge incorrectly characterized the motion as defendant's second petition for post-conviction relief (PCR) and that the extended term constituted an illegal sentence because it violated the precepts of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Whether defendant's current application is considered a motion to correct an illegal sentence or an application for PCR, is of no moment.

Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455. Here, Judge Barisonek sentenced defendant to an extended term, under N.J.S.A. 2C:44-3(a), based upon prerequisites related to defendant's "recidivism," which may be found by the judge without presentation to the jury. State v. Dixon, 346 N.J. Super. 126, 140-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002). The judge also carefully followed State v. Dunbar, 108 N.J. 80, 89 (1987), and imposed a presumptive extended term, thereby rendering inapplicable any possible retroactive application of State v. Natale, 184 N.J. 458, 466 (2005). Thus, defendant's sentence was not illegal.

In addition, we apply the Apprendi/Blakely principles "to defendants with cases on direct appeal as of [August 2, 2005] and to those defendants who raised Apprendi claims at trial or on direct appeal." State v. Franklin, 184 N.J. 516, 540 (2005). It is uncontested that defendant failed to raise an Apprendi claim either at trial or on direct appeal, and defendant's current motion was filed on August 24, 2004, over two months after the Supreme Court denied certification of the appeal from his conviction and sentence. State v. Lowery, 180 N.J. 453 (2004). Therefore, defendant's motion seeks collateral review and cannot be considered a direct appeal, whether or not it is properly considered an application for PCR. Consequently, Judge Barisonek correctly denied the motion.

Affirmed.

 

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A-1714-04T1

April 19, 2006