STATE OF NEW JERSEY v. FRANCIS NEWTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS NEWTON,

Defendant-Appellant.

_______________________________

January 12, 2016

Submitted December 2, 2015 Decided

Before Judges Fuentes and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1684-93.

Francis Newton, appellant pro se.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Over twenty years ago, defendant Francis Newton was convicted of a first-degree crime and thereafter sentenced to an extended term of fifty years in prison. On direct appeal, in 2000 we held that defendant's sentence was legal. On appeal of a petition for post-conviction relief (PCR), in 2011 we held that defendant's sentence was legal. Defendant now appeals the most recent of a series of orders entered by the Law Division denying his motions for reconsideration of his allegedly illegal sentence. On this appeal, defendant again argues his sentence is illegal. We reject defendant's arguments and affirm.

In 1994, a jury found defendant and co-defendant ClevelandFerron1 guilty of first-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(1), and third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Defendant had fled during trial and, thus, was convicted in absentia. He was later arrested and convicted of a separate drug offense in New York. In 1997, defendant was brought to New Jersey and sentenced to an extended term of fifty years in prison with one-third of that time ineligible for parole. The sentence was made consecutive to the New York sentence defendant was then serving.

Ferron was also sentenced to fifty years in prison with one-third of that time ineligible for parole. Ferron's sentence was made consecutive to an Alabama sentence Ferron was serving.

Defendant and Ferron both appealed and the same panel of judges of this court heard both appeals. Ferron's conviction was affirmed, but, for facts unique to Ferron, his sentence was modified so that his New Jersey sentence of fifty years ran concurrent with the sentence he was serving in Alabama. State v. Fearon, No. A-2198-98 (App. Div. Feb. 18, 2000), certif. denied, 165 N.J. 491 (2000).

Defendant's conviction and sentence were both affirmed. State v. Newton, No. A-1962-97 (App. Div. Feb. 18, 2000) (Newton I), certif. denied, 165 N.J. 133 (2000). This court held that defendant's sentence was legal and that defendant had been correctly sentenced to a mandatory extended term because of his New York conviction for possession of narcotics with intent to sell. Id. at 13. Specifically, in 2000 we held

Defendant undoubtedly received an extremely harsh sentence fifty years imprisonment with parole ineligibility for the first one-third of the term. That sentence, however, is not the product of the judge's erroneous application of the law or an abuse of judicial discretion. The sentence was virtually mandated by the statutes that required the extended term, set the parameters for the extended term, set the presumptive term within the extended range, and required a period of parole ineligibility not less than three years or one-third of the sentence imposed, whichever is greater. The sentencing judge cannot exercise discretion he does not possess.

Defendant's judgment of conviction including the sentence is affirmed.

[Ibid.].

The Supreme Court denied defendant's petition for certification.

In 2004, defendant filed a PCR petition, which was dismissed without prejudice and refiled in 2007. That petition was denied and the denial was affirmed by this court on appeal. State v. Newton, No. A-1010-09 (App. Div. May 16, 2011) (Newton II), certif. denied, 209 N.J. 96 (2011). In his PCR petition, defendant argued that his sentence violated his Sixth Amendment right to a jury trial because the court imposed the then presumptive term for a first-degree crime. Defendant also contended that he was entitled to have the sentence vacated and the matter remanded for resentencing under State v. Natale, 184 N.J. 458 (2005). We rejected both those arguments finding (1) "defendant's direct appeal had been decided prior to the Court's 2005 decision in Natale, [and thus] this case does not fall within the ambit of pipeline retroactivity," and (2) defendant's sentence was not "otherwise illegal." Newton II, supra, slip op. at 8.

In 2012, defendant filed a motion in the Law Division to reconsider what he characterized as a motion denying his illegal sentence. That motion was denied in September 2012. In November 2012, defendant filed another motion for reconsideration. When that motion was heard, defendant, appearing self-represented, argued that his sentence was illegal and should be modified to match the sentence of his co-defendant and, therefore, defendant should be resentenced to have his New York sentence run concurrent to his New Jersey sentence. That motion was denied in an order dated August 12, 2013, which was accompanied by a thorough and well-reasoned written opinion by Judge Edward A. Jerejian.

Defendant now appeals the August 12, 2013 order, and makes the following arguments

POINT I ON DIRECT APPEAL, THE CO-DEFENDANT CHALLENGED THE TRIAL COURT'S IMPOSITION OF A CONSECUTIVE SENTENCE TO HIS OUT-OF-STATE SENTENCE AND THE APPELLATE COURT REMANDED FOR RESENTENCING TO A CONCURRENT TERM. WHEN DEFENDANT'S SENTENCE IS COMPARED TO HIS CO-DEFENDANT'S SENTENCE, THE OBVIOUS DISPARITY BETWEEN THEIR SENTENCES IS ILLEGAL. PURSUANT TO THE STATE'S PRECEPTS OF SENTENCING UNIFORMITY, THIS DEFENDANT IS ENTITLED TO HAVE HIS JUDGMENT OF CONVICTION AMENDED TO CONFORM WITH THE SENTENCE IMPOSED ON HIS CO-DEFENDANT.

POINT II DEFENDANT IS ENTITLED TO EQUAL PROTECTION UNDER THE LAWS OF THIS STATE AND THE FEDERAL CONSTITUTION.

A. FAILURE TO RUN DEFENDANT'S SENTENCE CONCURRENT TO HIS NEW YORK CONVICTION CONSTITUTES A STATE AND FEDERAL EQUAL PROTECTION VIOLATION FOR THIS DEFENDANT.

B. FAILURE TO RUN DEFENDANT'S SENTENCE CONCURRENT TO THE NEW YORK CONVICTION CONSTITUTES STATE AND FEDERAL AGE DISCRIMINATION.

POINT III A MOTION FOR REDUCTION OR CHANGE OF SENTENCE NOT AUTHORIZED BY THE CODE OF CRIMINAL JUSTICE (ILLEGAL SENTENCE) MAY BE FILED AT ANY TIME. DEFENDANT FILED HIS MOTION TO CORRECT AN ILLEGAL SENTENCE, PURSUANT TO N.J.Ct.R. 3:21-10(b)(5), AND THEREFORE, THE COURT ERRED IN FINDING THAT THE DEFENDANT WAS TIME BARRED IN RAISING A CLAIM OF DISPARATE SENTENCING.

POINT IV THE APPOINTED APPELLATE AND PCR COUNSELS AND THE OFFICE OF THE PUBLIC DEFENDER WERE INEFFECTIVE BY FAILING TO RECOGNIZE AND RAISE THE ISSUE OF SENTENCING DISPARITY AFTER THE CO-DEFENDANT'S SENTENCE WAS MODIFIED, WHICH EXPOSED DEFENDANT TO A MUCH LONGER SENTENCE THAN HIS SIMILARLY SITUATED CO-DEFENDANT.

POINT V THE SENTENCING COURT ERRED BY IMPOSING A SENTENCE CONSECUTIVE TO THE DEFENDANT'S NEW YORK STATE CONVICTION WHERE THE OUT-OF-STATE CONVICTION CONSTITUTED A COROLLARY FACT NOT FOUND BY THE JURY IN THE INSTANT MATTER. (Not Raised Below)

POINT VI THE OFFICE OF THE PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT BY FAILING TO RAISE THE ISSUE OF SENTENCING DISPARITY BEFORE THE RE-SENTENCING JUDGE AS IN THE CO-DEFENDANT'S CASE; OR IN THE ALTERNATIVE, FAILED TO REQUEST THE OFFICE OF THE PUBLIC DEFENDER TO JOIN THE CASE ON BEHALF OF THIS DEFENDANT FOR THE PURPOSE OF RE-SENTENCING TO A CONCURRENT TERM.

POINT VII THE OFFICE OF THE PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT BY FAILING TO RAISE THE ISSUE OF SENTENCING DISPARITY BEFORE THE DEFENDANT'S PCR HEARINGS; OR IN THE ALTERNATIVE, FAILED TO INFORM APPOINTED COUNSEL OF THE CO-DEFENDANT'S MODIFIED SENTENCE.

POINT VIII THE SENTENCING JUDGE ABUSED HIS DISCRETION WHEN HE DOUBLE AND TRIPLE-COUNTED FACTS, NOT FOUND BY THE JURY, IN ORDER TO DETERMINE THE AGGRAVATING FACTORS, THE LENGTH OF THE DEFENDANT'S SENTENCE, AND WHETHER TO IMPOSE A CONSECUTIVE TERM TO AN AFTER-OCCURRING OFFENSE IN ANOTHER STATE. (Not Raised Below)

Defendant's primary argument is that his sentence is illegal because he was treated differently than his co-defendant, Ferron. That argument has no merit. In 2000, the same panel of judges of this court modified Ferron's sentence, but affirmed defendant's sentence. Ferron's sentence was modified for facts unique to Ferron. There was and is nothing illegal in defendant's sentence and this court made that clear in the decision issued in 2000. Newton I, supra, slip op. at 13. As the Supreme Court denied certification, that decision became final and is no longer subject to challenge.

Defendant's arguments about disparate treatment, violations of his equal protection rights, age discrimination, errors or misconduct by the prosecutor or the public defender, and abuses of discretion by the sentencing judge are without merit. All those arguments were correctly and thoroughly analyzed and rejected by Judge Jerejian in his written opinion issued on August 12, 2013. We affirm for essentially the reasons expressed by Judge Jerejian.

Affirmed.

1 In an earlier appeal we determined that this is his correct name, although the caption in that case identifies him as Cecil Fearon.