STATE OF NEW JERSEY v. FRANKLIN RUSSO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1132-03T41132-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANKLIN RUSSO,

Defendant-Appellant.

___________________________________

 

Submitted October 25, 2005 - Decided

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 94-10-1273.

Yvonne Smith Segars, Public Defender, attorney for appellant (J. Stewart Borrow, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a supplemental pro se brief.

PER CURIAM

On October 24, 1995, defendant pled guilty to various offenses he committed on September 21, 1994. The trial court imposed an aggregate sentence of forty-five years imprisonment, with sixteen years of parole ineligibility. After sentencing, defendant filed a motion to withdraw his guilty plea, which the trial court denied.

On appeal, defendant challenged both the denial of his motion to withdraw his plea and his sentence. Defendant also contended that he had been denied effective assistance of trial counsel.

In an unreported opinion, we affirmed the denial of defendant's motion to withdraw his guilty plea on the grounds that it was not voluntarily or intelligently entered and that it resulted from ineffective assistance of trial counsel. State v. Russo, No. A-2958-95T1 (decided Jan. 28, 1999). However, we concluded that defendant had not provided an adequate factual basis for his guilty pleas to certain counts of the indictment. We also concluded that the trial court erred in its determination of assorted merger issues. Accordingly, we vacated the sentences imposed on the entire indictment and remanded the case for resentencing following disposition of the charges on which defendant had not provided an adequate factual basis for his guilty pleas.

Defendant entered into a plea bargain with the State regarding the remanded charges, and the trial court resentenced defendant to an aggregate term of thirty-five years imprisonment, with twelve years of parole ineligibility. The sentence consisted of concurrent fifteen-year terms of imprisonment, with five years of parole ineligibility, for two first-degree robberies, and a consecutive twenty-year term, with seven years of parole ineligibility, for kidnapping. The court also imposed shorter concurrent sentences that have already been served for a number of other offenses and merged defendant's other convictions.

On an appeal heard on our excess sentence oral argument calendar, see R. 2:9-11, we affirmed this sentence. State v. Russo, A-1036-99T4F (decided Sept. 14, 2000). Our order stated:

We find no basis to disturb the consecutive sentences imposed for the crimes of robbery and kidnapping. We also find no sound basis for the defendant's challenge to the quantum of the base sentences.

The Supreme Court denied defendant's petition for certification. 170 N.J. 210 (2001).

Thereafter, defendant filed what he designated as a motion to correct an improper sentence, which the trial court deemed to be a petition for post-conviction relief. This petition contended that defendant's convictions for robbery and kidnapping should have been merged or, in the alternative, that the sentences should have been made concurrent rather than consecutive. The trial court denied the petition by an oral opinion rendered on September 18, 2003, on the ground that defendant's arguments were the same arguments he had presented in his direct appeal to this court and therefore were barred by Rule 3:22-5. The court also concluded that defendant had failed to show any basis for modification of his sentence.

On appeal, the Public Defender has submitted a brief on defendant's behalf that argues:

THE DEFENDANT RECEIVED THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, IN VIOLATION OF HIS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

Under this point heading, defendant again argues that the consecutive sentences imposed upon him for robbery and kidnapping constitute an illegal sentence. In a supplemental pro se brief, defendant makes essentially the same argument under a point heading that states:

THE IMPOSITION OF CONSECUTIVE SENTENCES WAS CONTRARY TO THE CRITERIA ESTABLISHED BY THE NEW JERSEY SUPREME COURT.

 
Defendant's arguments are essentially the same arguments we rejected on his direct appeal. Therefore, the trial court correctly concluded that Rule 3:22-5 required denial of defendant's petition. In any event, defendant's arguments are clearly without merit. R. 2:11-3(e)(2).

Affirmed.

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A-1132-03T4

November 3, 2005