STATE OF NEW JERSEY v. ANTHONY COAXUM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0102-05T40102-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY COAXUM,

Defendant-Appellant.

______________________________

 

Submitted October 31, 2006 - Decided November 20, 2006

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-06-2379.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from an order of the Law Division entered on May 13, 2005, denying his petition for post-conviction relief (PCR). We affirm.

Tried to a jury, defendant was convicted of two counts of first-degree robbery, N.J.S.A. 2C:15-1. On March 12, 1993, defendant was sentenced on Count One to the Men's Youth Correctional Institution Complex for an indeterminate term of imprisonment, not to exceed sixteen years. Count Two was downgraded to second-degree robbery, and defendant was sentenced on that count to a concurrent indeterminate term, not to exceed eight years. Because the trial facts were discussed at length in our prior opinion, State v. Coaxum, No. A-0564-95T4 (App. Div. November 20, 1996), it is unnecessary for us to detail the evidence against defendant for these crimes. We affirmed the judgment of convictions; and the sentences imposed. (slip op. at 14). On February 25, 1997, the Supreme Court denied defendant's petition for certification. State v. Coaxum, 148 N.J. 463 (1997).

On March 4, 2002, almost nine years post-entry of the judgment of convictions, defendant filed his pro se petition for PCR. Amended petitions were filed on August 16, 2004, and February 23, 2005, raising the following issues for the trial court's consideration: 1) defendant was denied effective assistance of trial counsel because counsel failed to request that the jury be questioned concerning possible racial bias; 2) defendant's sentences, which exceeded the then-presumptive terms for first- and second-degree convictions, and the court's determination there was good cause shown to impose an indeterminate youth act sentence above five years, were based on facts not found by a jury beyond a reasonable doubt, violating his constitutional rights; and 3) defendant's PCR application should not be barred for procedural reasons.

On May 13, 2005, Judge Honigfield rendered an oral opinion determining that defendant's petition was not time barred; defendant was not denied effective assistance of counsel because the decision not to voir dire on racial bias was a trial strategy; and the sentences imposed did not violate Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) because the "aggravating factors that were found by the [c]ourt were basically record[-]related factors." The motion judge determined that he was not bound by this court's opinion in State v. Natale, 373 N.J. Super. 226 (App. Div. 2004) because the decision had been stayed pending review by the Supreme Court, and the Court had not yet ruled on the matter. State v. Natale (II), 184 N.J. 458 (2005).

On appeal, defendant again argues that: 1) he was denied effective assistance of counsel because trial counsel had failed to request the court voir dire prospective jurors concerning whether they held any prejudice against African-Americans, defendant being an African-American; and 2) that the sentences violated his Sixth Amendment jury trial guarantee because they were above the then statutory terms based on factors, other than his prior criminal convictions, not determined by a jury beyond a reasonable doubt, citing Blakely and Natale (II).

After carefully considering the record and briefs, we are satisfied that defendant's first argument is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Honigfield in his well-reasoned oral opinion of May 13, 2005. We are equally satisfied that defendant's second argument is without merit. Notwithstanding, we add the following comment.

In Natale II, the Court held "that a sentence above the then presumptive statutory term based solely on a judicial finding of aggravated factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale II, 184 N.J. at 466. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors, other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487. As a result of the "new rule of law," the Court limited the extent of its retroactive application. Id. at 493-94. The Court determined that pipeline retroactivity, that is, "applying our holding to defendants with cases on direct appeal as of the date of this decision [August 2, 2005] and to those defendants who raise Blakely claims at trial or on direct appeal," id. at 494, "best balances the principles of fairness and repose." Ibid. Here, defendant did not raise the Sixth Amendment argument at trial or on direct appeal.

Acknowledging that his Sixth Amendment argument may be barred by the Court's determination to limit Natale II to cases that were in the pipeline at the time the Court rendered its decision, defendant argues that he is entitled to a PCR collateral review of the sentences. Defendant contends that because the sentences violated his Sixth Amendment right to a jury trial they were "illegal," and an illegal sentence may be reviewed by the Court at any time, citing R. 3:22-12(a). We reject this argument. "We are satisfied that any expansion of the Court's expressed definition of pipeline retroactivity can come only from the Supreme Court." State v. Roundtree, 388 N.J. Super. 190, 206 (App. Div. 2006) (holding that a defendant is not entitled to a retroactive application of Franklin in the context of a collateral review in a PCR petition).

Affirmed.

 

State v. Franklin, 184 N.J. 516 (2005) (applying Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct., 2348, 147 L. Ed. 2d 435 (2000) to a Graves Act, N.J.S.A. 2C:43-6c second-offender sentencing).

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6

A-0102-05T4

 

November 20, 2006