STATE OF NEW JERSEY v. QUASHIC COLVIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6175-04T46175-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

QUASHIC COLVIN,

Defendant-Appellant.

______________________________________________

 

Submitted September 27, 2006 - Decided October 13, 2006

Before Judges Wefing, Parker and C.S.

Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-03-0291.

Yvonne Smith Segars, Public Defender, attor-ney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

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

PER CURIAM

On October 26, 2001, at the conclusion of a nine-day trial, a jury found defendant guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Defendant was sentenced, on January 25, 2002, to an aggregate custodial term of twenty-nine years. In applying the No Early Release Act, N.J.S.A. 2C:43-7.2, the judge ordered defendant to serve twenty-two years, four months, and twenty-six days before becoming eligible for parole.

Defendant appealed, arguing that: the jury instructions were erroneous; the verdict was against the weight of the evidence; prosecutorial misconduct prejudiced his right to a fair trial; the trial judge erroneously admitted, among other things, autopsy photographs into evidence; he was denied the effective assistance of counsel; and the sentence imposed was excessive. On September 26, 2003, by way of an unpublished opinion, we rejected all these arguments and affirmed, State v. Colvin, Docket No. A-4075-01T4, and, on January 29, 2004, the Supreme Court denied defendant's petition for certification, 178 N.J. 455.

On May 11, 2004, defendant filed a petition for post-conviction relief, which was denied by the trial judge on June 21, 2005.

In appealing the denial of his petition for post-conviction relief, defendant raises the following arguments for our consideration:

I. THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT WAS IMPROPERLY SENTENCED TO TERMS GREATER THAN THE PRE-SUMPTIVE TERMS.

II. THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT WAS IMPROPERLY SENTENCED TO A DISCRETIONARY PERIOD OF PAROLE INELIGIBILITY.

III. THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT WAS IMPROPERLY SENTENCED TO A CONSECUTIVE TERM.

We reject these arguments and affirm.

Post-conviction relief is not to be used "as a substitute for an appeal." State v. Smith, 43 N.J. 67, 74 (1964). Instead, this device permits a defendant to challenge a judgment of conviction by presenting arguments "that could not have been raised on direct appeal," State v. Afanador, 151 N.J. 41, 49 (1997), such as a claim based upon newly announced case law or upon a rationale that was not readily available to the defendant at the time of the direct appeal, State v. Preciose, 129 N.J. 451, 459 (1992). Any issue not previously raised is barred from consideration in post-conviction relief proceedings unless it "could not reasonably have been raised in any prior proceeding," or when "enforcement of the bar would result in fundamental injustice," or when "denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." R. 3:22-4.

In Point I, defendant asserts that the trial judge imposed a sentence that exceeded the then existing presumptive terms by applying the aggravating factors contained in N.J.S.A. 2C:44-1(a)(3), (6) and (9) in an unconstitutional manner, and, in Point II, defendant argues that the trial judge improperly imposed a discretionary period of parole ineligibility; in making both these arguments, defendant relies upon the changes to the sentencing laws declared by our Supreme Court in State v. Natale, 184 N.J. 458 (2005). Although these arguments are not barred by R. 3:22-4, they are nevertheless unavailing because of the Natale Court's express limitation on the future application of its holding.

As we have observed, defendant was sentenced on January 24, 2002, our decision affirming the judgment of conviction was filed on September 26, 2003, and the Supreme Court denied certification on January 29, 2004. Natale, which was decided by the Court on August 2, 2005, expressly declared that the changes to our sentencing laws then announced would be given only "pipeline retroactivity," i.e., the Natale holding would apply only to defendants with cases then pending on direct appeal and to those defendants who had raised Blakely issues at trial or on direct appeal. 184 N.J. at 494. Since defendant did not have a case on direct appeal when Natale was decided and since defendant did not previously raise a Blakely argument, his reliance on these authorities cannot form the basis for post-conviction relief.

In Point III, defendant argues that the trial judge abused his discretion and misapplied the guidelines set forth in State v. Yarbough, 100 N.J. 627 (1985) in imposing consecutive terms of imprisonment. This argument could have been raised on direct appeal and was, thus, properly found by the trial judge to be an inadequate ground for the issuance of post-conviction relief.

 
Affirmed.

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

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A-6175-04T4

 

October 13, 2006