STATE OF NEW JERSEY v. ANGEL HERNANDEZ-CAMILLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5360-08T45360-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL HERNANDEZ-CAMILLO,

Defendant-Appellant.

__________________________________

 

Submitted June 29, 2010 - Decided

Before Judges Stern and Wefing.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, No. 95-10-2398.

Angel Hernandez-Camillo, appellant pro se.

Theodore F.L. Housel, Atlantic County

Prosecutor, attorney for respondent (Jack J.

Lipari, Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his motion to correct an illegal sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was convicted by a jury in 1997 of two counts of second-degree burglary, N.J.S.A. 2C:18-2; one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and one count of first-degree robbery, N.J.S.A. 2C:15-1. The jury was unable to reach a decision on two counts of felony murder. N.J.S.A. 2C:11-3a(3). In light of defendant's extensive criminal record, the trial court granted the State's motion for a discretionary extended term, N.J.S.A. 2C:44-3a, and sentenced defendant to life in prison with a twenty-five-year period of parole ineligibility for robbery and a consecutive ten-year term, with a five-year period of parole ineligibility for burglary. The felony murder charges were dismissed. In brief, defendant broke into the victim's home at night, seeking to steal money to support his long-standing drug habit. When the victim awoke and resisted, defendant struck him with a wrench. The victim died a short time later; the jury was unable to decide whether defendant was criminally responsible for his death.

Defendant appealed, and we affirmed his convictions in an unpublished decision. State v. Hernandez-Camillo, No. A-2148-97 (App. Div. May 27, 1999). We remanded the matter for resentencing, however, finding the maximum consecutive sentence not justified. On remand, the trial court continued the consecutive sentence for defendant's burglary conviction but removed the period of parole ineligibility. The Supreme Court denied defendant's petition for certification. 162 N.J. 129 (1999). Defendant again appealed, and the matter was heard on an Excessive Sentence Oral Argument calendar. We remanded the matter to the trial court with directions to modify defendant's sentence for burglary to be served concurrently, rather than consecutively. State v. Hernandez-Camillo, No. A-6973-98T4, (App. Div. Mar. 30, 2000).

Defendant then filed a petition for post-conviction relief, which was denied by the trial court. Defendant again appealed to this court, and we affirmed. State v. Hernandez-Camillo, No. A-6644-02T4 (App. Div. Nov. 1, 2004). The Supreme Court again denied defendant's petition for certification. 182 N.J. 629 (2005).

On May 4, 2009, twelve years after his original sentencing, defendant filed a motion to correct his sentence as illegal. The premise for his motion was his contention that the judicial fact-finding in 1997 that an extended-term sentence was necessary for the protection of the public was a violation of the principles enunciated in 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). The trial court denied his motion, and this appeal followed. We are satisfied the trial court correctly denied his motion.

The New Jersey Supreme Court took up the question of extended-term sentencing in light of Apprendi and Blakely and their New Jersey counterpart, State v. Natale, 184 N.J. 458 (2005), in State v. Pierce, 188 N.J. 155 (2006). In Pierce, the Court adopted the rationale it had earlier expressed in Natale and concluded that the permissible range of extended-term sentencing ran from the lowest end of ordinary term sentencing to the highest of extended-term sentencing. 188 N.J. at 169. In Natale, the Court expressly directed that its holding would apply only to those cases pending on direct appeal or to defendants who had raised Blakely claims either at trial or on direct appeal. 184 N.J. at 494. The State argues that although Pierce did not expressly address the question of retroactivity in its opinion, it adopted by implication the principle of pipeline retroactivity the Court had utilized in Natale.

We agree with the State's position. Defendant has pointed to a number of out-of-state cases which have held other states' extended-term sentencing procedures to run afoul of Apprendi and Blakely. He has not even addressed the question of retroactivity, let alone attempted to articulate a reasoned basis for us to apply a different principle than pipeline retroactivity.

As part of our review of this matter, we have reviewed the earlier briefs defendant filed with this court, as well as the transcripts of the earlier sentencing proceedings. We are satisfied that at no point prior to his May 2009 motion did defendant raise a Blakely argument. He is therefore not entitled to pipeline retroactivity.

The order under review is affirmed.

 

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A-5360-08T4

August 9, 2010