STATE OF NEW JERSEY v. MARTIAL ST. PREUX

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3835-04T43835-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARTIAL ST. PREUX,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 13, 2006 - Decided October 11, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 3554-10-96.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Brian D. Driscoll,

Designated Counsel, of counsel and on

the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Joan E. Love,

Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant is serving a thirty-year prison term, with a fifteen-year parole ineligibility period, for second-degree conspiracy to kidnap and/or murder, first-degree kidnapping, and second-degree aggravated assault. After exhausting all direct appeals, defendant petitioned for post-conviction relief (PCR). Defendant claims (a) that Judge Honigfield, the trial and PCR judge, had imposed an excessive sentence, which violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); and (b) that his trial counsel had been ineffective for failing to move for severance of his joint-trial with co-defendants Nesly Dazilme, Kerlo Berthelus, Evans Mary, and Ernest Nicholas.

Defendant's Blakely argument lacks merit. He was convicted in 1998, well before Blakely was decided and failed to anticipate the issue in any of his direct appeals. We reject defendant's argument that a Blakely claim is advanced by objecting to the excessiveness of any sentence or parole ineligibility period, the double counting or misapplication of aggravating factors, or the ignoring of allegedly pertinent mitigating factors. The Blakely issue has been accorded "pipeline retroactivity," applying only "to defendants with cases on direct appeal [in 2005] and to those defendants who raised Blakely claims at trial or on direct appeal." State v. Natale, 184 N.J. 458, 494 (2005). Defendant does not meet this standard.

Defendant also contends that Judge Honigfeld erred by imposing a Graves Act parole disqualifier, N.J.S.A. 2C:43-6c, despite the fact that the jury acquitted defendant of all weapon possession charges. However, there is "no constitutional impediment to a court's imposition of a parole disqualifier pursuant to N.J.S.A. 2C:43-6(b) based on judicial factfinding." State v. Franklin, 184 N.J. 516, 534 n.6 (2005); see also State v. Figueroa, 358 N.J. Super. 317, 324 (App. Div. 2003)(a jury acquittal of a weapons offense does not preclude a Graves Act sentence).

Although defendant contends that Judge Honigfeld failed to consider his severance claim and requests that we remand this issue, we deny this request. Instead, we exercise our original jurisdiction, under R. 2:10-5, and dispose of this meritless contention. The severance claim is procedurally barred because the issue should have been raised on direct appeal, if not at trial. R. 3:22-4; State v. Mitchell, 126 N.J. 565, 583 (1992) ("[PCR] proceedings are not a substitute for direct appeal." (quoting State v. Cerbo, 73 N.J. 595, 605 (1979))).

Moreover, there were no grounds for severance of defendant's trial from his co-defendants. Rule 3:7-7 allows for joinder of defendants who have participated in the same act, which is the precise situation here, where defendant and his co-defendants rendered their victim a paraplegic. Furthermore, had a severance application been made, it would surely have been denied. See State v. Sanchez, 143 N.J. 273, 281-82 (1996).

Accordingly, defendant's PCR petition was properly denied. See State v. Fritz, 105 N.J. 42, 58 (1987).

Affirmed.

 

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A-3835-04T4

October 11, 2006