STATE OF NEW JERSEY v. JOSEPH ZLUKY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1673-04T41673-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH ZLUKY,

Defendant-Appellant.

_______________________________________

 

Submitted January 9, 2006 - Decided January 23, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No.99-08-2429.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

Vincent P. Sarubbi, Camden County Prosecutor (Roseann A. Finn, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged under a Camden County Indictment with second-degree robbery, contrary to N.J.S.A. 2C:15-1. Following trial before a jury, defendant was found guilty. On May 25, 2000, the trial judge granted the State's motion to sentence defendant to an extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3a. Finding that the aggravating factors outweighed the mitigating factors, the judge imposed a sentence of seventeen years in prison, with an eight-year period of parole ineligibility. The judge ordered that the sentence be served consecutive to any sentence that defendant was then serving in Pennsylvania. The judge also imposed certain penalties and assessments. Defendant appealed and we filed an opinion on October 16, 2002 affirming the conviction and sentence. By order filed December 12, 2002, the Supreme Court denied defendant's petition for certification.

On March 7, 2003, defendant filed a pro se petition for post-conviction relief, in which he asserted that he was denied the effective assistance of counsel because his trial attorney did not subpoena five witnesses; failed to obtain documentary evidence; did not challenge certain facts testified to by witnesses presented by the State; and failed to impeach the credibility of the State's witnesses by reference to certain prior inconsistent statements. Defendant also asserted that his right to a fair trial had been abridged because the prosecutor had destroyed certain evidence and used "false impressions" to mislead the jury.

The Office of the Public Defender filed a supplemental petition. The Public Defender asserted that defendant was denied the effective assistance of counsel because counsel: failed to call Philadelphia police officer Brian Dietz; did not cross-examine the store manager as to why he needed a computer to estimate the value of the stolen merchandise; failed to confront the State's witnesses about their ability to observe persons entering the store from inside the office; and failed to cross-examine the State's witnesses on inconsistent trial testimony. The Public Defender also asserted that the discretionary extended term violated defendant's right to a jury trial under the Sixth Amendment.

The judge conducted a hearing on October 29, 2004. Thereafter, in a decision from the bench, the judge rejected all of defendant's assertions. The judge entered an order denying the petition and this appeal followed. Defendant raises the following contentions for our consideration:

POINT I: IMPOSITION OF THE DISCRETIONARY OFFENDER EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW UNDER 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).

POINT II: THE STATE'S CLAIM BELOW THAT DEFENDANT'S APPRENDI/BLAKELY CLAIM IS BARRED BY PRINCIPLES OF RETROACTIVITY HAS NO MERIT; DEFENDANT MUST BE RE-SENTENCED TO NO MORE THAN THE MAXIMUM SECOND DEGREE TERM OF TEN YEARS.

While this appeal was pending, the Supreme Court decided State v. Natale, 184 N.J. 458 (2005), in which the Court held that New Jersey's system of presumptive-term sentencing under our Code of Criminal Justice violates the Sixth Amendment's right to trial by jury. Id. at 484. The Court invalidated the presumptive terms under the Code, thereby making the top of the statutory range for the crime charged the "statutory maximum" authorized by the jury verdict or the facts admitted by defendant at his guilty plea. Id. at 487.

The Court in Natale ordered new sentencing hearings "in each affected case," at which the trial court must determine whether "the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96. However, the Court adopted a rule of limited retroactivity and applied its holding only to defendants with cases on direct appeal as of the date of the decision or defendants who raised Blakeley claims at trial or on direct appeal. Id. at 494.

Defendant's appeal was not in the "pipeline" on August 2, 2005 when the Supreme Court decided Natale. Ibid. Defendant's direct appeal was resolved on December 12, 2002 when the Supreme Court filed the order denying defendant's petition for certification. Furthermore, defendant did not raise the Blakely issue at trial or on direct appeal. Ibid. Therefore, defendant is not entitled to re-sentencing under Natale.

Affirmed.

 

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A-1673-04T4

January 23, 2006