STATE OF NEW JERSEY v. EXOR V. NATAL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6655-04T36655-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EXOR V. NATAL,

Defendant-Appellant.

________________________________________________________________

 

Argued May 9, 2006 - Decided June 5, 2006

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 01-11-01411-I.

Edward C. Bertucio, Jr. argued the cause for appellant (Hobbie, Corrigan, Bertucio & Tashjy, attorneys; Norman M. Hobbie, of counsel; Mr. Bertucio, of counsel and on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Ms. Agre, of counsel and on the brief).

PER CURIAM

Defendant, Exor V. Natal, is serving a seven-year prison sentence, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for second-degree vehicular homicide, N.J.S.A. 2C:11-5a. After defendant was sentenced on January 17, 2003, he filed a direct appeal. On January 7, 2004, while the appeal was pending, a panel of this court issued its decision in State v. Jarrells, 365 N.J. Super. 320 (App. Div. 2004), holding that NERA did not apply to vehicular homicide that occurred prior to the 2001 amendment to NERA. Id. at 325. The State petitioned the Supreme Court for certification in Jarrells, and on February 2, 2004, the panel of this court that decided Jarrells issued an order staying its opinion pending disposition of the petition for certification. Ultimately, on October 26, 2004, the Supreme Court reversed the decision of this court in Jarrells and ordered reinstatement of the NERA sentence that had been imposed by the Law Division in that case. State v. Jarrells, 181 N.J. 538, 540 (2004). The Court relied upon earlier decisions, which predated the conviction of defendant in this case, namely, State v. Wade, 169 N.J. 302 (2001), and State v. Ferencsik, 326 N.J. Super. 228 (App. Div. 1999). Ibid. Thus, the law is conclusively settled that NERA, in its form prior to the 2001 amendments, applies to vehicular homicide.

We affirmed defendant's conviction and sentence. State v. Natal, No. A-3688-02T4 (App. Div. January 4, 2005). Defendant then filed a petition for post-conviction relief (PCR). Defendant argued that his appellate counsel was ineffective for failing to file a motion in the trial court between January 7, 2004 and February 2, 2004 to have the NERA parole disqualifier removed from the sentence in accordance with the opinion of this court in Jarrells. Defendant argued in the PCR proceeding that had the motion been filed during that window of opportunity the trial judge would have been bound to modify defendant's sentence by removing the NERA parole disqualifier because, in light of our decision in Jarrells, inclusion of the parole disqualifier rendered the sentence illegal. Defendant further argued that, even though Jarrells was later reversed, he would have permanently enjoyed the benefit of the non-NERA sentence because it would have been legal at the time it was imposed (during the window between January 7, 2004 and February 2, 2004), and would have never been subject to change.

Judge Almeida rejected defendant's argument and denied his PCR petition. The judge found that "[e]ven if [appellate counsel] had filed a post conviction relief petition for a modification of Mr. Natal's sentence in this court during the three and a half to four weeks that Jarrells constituted good law, that sentence would have been and I do find illegal and correctable at any time." Therefore, even if counsel was deficient for not being aware of our decision in Jarrells as soon as it was issued, there was no prejudice to defendant and the ultimate outcome of his sentence, after the Supreme Court's reversal, would have been the same.

On appeal, defendant argues that "the trial court improperly denied appellant's post-conviction relief application seeking resentencing in this matter." His argument before us is the same as in the trial court. We reject defendant's argument. The trial judge's analysis was correct.

For a defendant to be entitled to relief because of a claim of ineffective assistance of counsel, he must satisfy the Strickland/Fritz test by establishing that counsel's performance was deficient and that a reasonable probability exists that but for counsel's unprofessional errors the result of the proceeding would have been different. A defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

It is clear to us that, even if defendant could establish the first prong, he has failed to satisfy the second prong of the Strickland/Fritz test. Defendant's argument that if he had been resentenced during the window of opportunity within which our decision in Jarrells was "good law" he would have permanently enjoyed the benefit of that disposition misconceives the distinction between a legal and illegal sentence. Indeed, the very examples suggested by defendant in support of his position demonstrate the misconception. Defendant analogizes sentencing in accordance with our Jarrells decision to sentences of defendant's prior to the adoption of the Graves Act, N.J.S.A. 2C:43-6 or prior to passage of the Comprehensive Drug Reform Act, N.J.S.A. 2C:35-1 to 36A-1. He correctly points out that a defendant sentenced under one legislative enactment cannot be resentenced to a harsher term when the legislation is amended to provide for more severe punishment. Such amendatory legislation has a prospective effect. Any sentence previously imposed that accorded with the pre-amendment legislation was "legal." However, if a sentencing judge or intermediate appellate court incorrectly interpreted the legislative provision and imposed a sentence that did not accord with the legislative enactment, the sentence was "illegal," and subject to appeal by the State and modification by a higher court.

We reject the analogy proffered by defendant. In Jarrells, quite simply, as later determined by the Supreme Court, this court misinterpreted the pre-amendment version of NERA. Thus, without question, the State had the right to seek review, which it did, resulting in a reinstatement of the defendant's NERA sentence. That is the situation here. The State possesses the unfettered right to seek correction of an illegal sentence at any time. State v. Parolin, 339 N.J. Super. 10, 13-14 (App. Div. 2001), rev'd on other grounds, 171 N.J. 223 (2002).

Had appellate counsel done what defendant suggests should have been done -- successfully raced to the courthouse, applied for and obtained a resentencing without a NERA parole disqualifier within the four-week window -- the State would have undoubtedly appealed. In light of the Supreme Court's decision in Jarrells, the State would have succeeded on the appeal. The resentencing during the four-week window would not have been a "legal" sentence at the time imposed. On the contrary, it would have been "illegal." The Supreme Court's decision in Jarrells, unlike legislation, is not limited to prospective application. That decision finally and conclusively resolved that the only "legal" sentence for a vehicular homicide after the adoption of NERA, including before its 2001 amendment, is a sentence that includes a NERA parole disqualifier.

Affirmed.

 

Defendant is also serving a consecutive nine-month prison term for fourth-degree assault by auto, N.J.S.A. 2C:12-1c(2). That sentence is not implicated in this appeal.

Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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A-6655-04T3

June 5, 2006