STATE OF NEW JERSEY v. GEORGE SMITH

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1125-04T2

A-2057-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GEORGE SMITH,

Defendant-Appellant.

 

Submitted November 2, 2005 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 90-05-0891-I.

George Smith, appellant pro se.

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, George Smith, was convicted in January 1995 of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one), and first-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1), b(1) (count two). The judge granted the State's application for an extended term pursuant to N.J.S.A. 2C:43-6(f), and imposed a thirty-six year term with a twelve-year period of parole ineligibility on the first-degree conviction, and a concurrent four-year term on the remaining charge. In these appeals, defendant challenges the denial of his post-conviction relief applications.

The case has a long procedural history. We affirmed defendant's conviction on July 17, 1996. State v. Smith, No. A-5068-94 (App. Div. July 17, 1996). The New Jersey Supreme Court denied his petition for certification. State v. Smith, 152 N.J. 193 (1997). Following a hearing, Judge Leahy denied defendant's first petition for post-conviction relief by order of February 16, 1999. We rejected defendant's appeal from that decision, and the Supreme Court again denied certification. State v. Smith, 165 N.J. 491 (2000).

Not having received relief in the State court system, on September 11, 2000, defendant sought a writ of habeas corpus in the United States District Court for the District of New Jersey. That court denied his petition by order dated July 26, 2001. His appeal from that determination was rejected by the Third Circuit and, ultimately, the United States Supreme Court denied his petition for a writ of certiorari.

Returning to State court, on February 14, 2003, defendant filed a second petition for post-conviction relief, which was denied by Judge Mathesius on March 7, 2003. Judge Mathesius similarly denied defendant's motion for reconsideration. Defendant appealed from that determination; on July 29, 2003, we granted the State's motion for summary disposition because defendant's second petition for post-conviction relief was out of time under Rule 3:22-12(a). The Supreme Court denied defendant's petition for certification. State v. Smith, 178 N.J. 375 (2003).

Defendant then filed a motion to correct an illegal sentence; Judge Sypek denied that motion on August 4, 2004. The court memorialized its decision in an order dated October 6, 2004.

Meanwhile, on September 21, 2004, defendant moved before the Law Division, again alleging that his sentence was illegal. By letter of October 14, 2004, Judge Mathesius denied that application. The record does not contain a copy of Judge Mathesius's order memorializing that decision. Nevertheless, we address the appeals from both Judge Sypek's order and Judge Mathesius's decision on their merits.

On appeal in docket no. A-1125-04T2, which challenges Judge Sypek's order, defendant raises the following points:

POINT I

APPELLANT'S ATTORNEY VIOLATED STATE v. RUE, 175 N.J. 1 (2002), BY FILING A LETTER TO DISMISS APPELLANT'S PRO SE PCR TO CORRECT AN ILLEGAL SENTENCE, PURSUANT TO R. 3:22-12(a), CONTRARY TO N.J. CONST. PAR. 1, 10 (1947).

POINT II

THE LAW DIVISION COMMITTED A REVERSIBLE ERROR BY MODIFYING THE NEW JERSEY SUPREME COURT'S HOLDING IN STATE V. RUE, 175 N.J. 1 (2002), BY DISMISSING APPELLANT'S PCR TO CORRECT AN ILLEGAL PLEA OFFER, BASED ON HIS ASSIGNED ATTORNEY'S MOTION WITHOUT ANY [] OPPOSITION FROM THE STATE IN VIOLATION OF N.J. CONST., ART. 6, 2, PAR. 3, AND ART. 1, PAR. 10.

On appeal in docket no. A-2057-04T2, which challenges Judge Mathesius's decision, defendant raises the following points:

ARGUMENT: APPELLANT'S MOTION FOR SUMMARY DISPOSITION SHOULD BE GRANTED BECAUSE THE COURT BELOW WAS PATENTLY IN ERROR WHEN IT DECLINED TO CONSIDER THE MERITS OF DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE.

A) THE TRIAL COURT WAS CLEARLY MISTAKEN IN DENYING DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE BASED UPON PRIOR ADJUDICATION UPON THE MERITS, AS THE ISSUES PRESENTED HAVE NEVER BEEN RAISED IN ANY PRIOR PROCEEDINGS.

B) UNDER BLAKELY v. WASHINGTON AS WELL AS NEW JERSEY PRECEDENT, APPELLANT'S SENTENCE SHOULD BE VACATED AS A MATTER OF LAW BECAUSE THE TRIAL COURT INCREASED THE SENTENCE BASED ON ITS CONSIDERATION OF AN INAPPROPRIATE AGGRAVATING FACTOR AND BECAUSE NONE OF THE AGGRAVATORS WAS SUBMITTED TO THE JURY.

1. SENTENCING COURT IMPROPERLY CONSIDERED LIKELIHOOD OF ORGANIZED CRIMINAL BEHAVIOR AS AN AGGRAVATING FACTOR.

2. THE TRIAL COURT'S VIOLATION OF THE GUIDELINES IN SENTENCING APPELLANT BASED UPON CONSIDERATION OF AN INAPPROPRIATE AGGRAVATING FACTOR, RENDERS HIS SENTENCE ILLEGAL.

3. UNDER BLAKELY AND ITS PROGENY, THE ADDITIONAL PUNISHMENT IMPOSED IN THIS CASE, BASED ON THE JUDGE'S FINDING OF SOME AGGRAVATING FACTORS, REPRESENTS AN EXCESS OF JUDICIAL FACT FINDING AND IS THUS UNCONSTITUTIONAL.

We have carefully reviewed the record in light of defendant's contentions and the applicable law. We are satisfied that his arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Sypek in her August 4, 2004, written decision, and by Judge Mathesius in his written decision on October 14, 2004.

 
Affirmed.

We consolidate the two appeals for purposes of this opinion.

The record does not contain our opinion rejecting defendant's appeal from Judge Leahy's order denying defendant's petition for post-conviction relief. The record does contain the Supreme Court's order denying defendant's petition for certification of that determination.

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5

A-1125-04T2

November 10, 2005

 


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