STATE OF NEW JERSEY v. MATTHEW J. BREWER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6885-03T56885-03T5

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MATTHEW J. BREWER,

Defendant-Respondent.

________________________________________________________________

 

Argued December 20, 2005 - Decided January 19, 2006

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 824-06-86.

Rita A. Jerejian argued the cause for appellant (Jerejian & Jerejian, attorneys; Ms. Jerejian and Edward A. Jerejian, of counsel and on the brief).

Karyn M. Pizzelanti, Assistant Prosecutor, argued the cause for respondent (Edward J. DeFazio, Hudson County Prosecutor, attorney; Ms. Pizzelanti, on the brief).

PER CURIAM

Defendant, Matthew J. Brewer, appeals from denial of his second petition for post-conviction relief (PCR). Defendant was sentenced in 1987 to consecutive sentences of thirty years imprisonment with a fifteen-year parole bar for first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1), and twenty years imprisonment with a ten-year parole bar for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3). He argues on appeal that the trial judge erred in denying his PCR petition because his consecutive sentence was a fundamental injustice and his sentence was illegal. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), and we affirm. We make these brief comments.

On direct appeal, we affirmed defendant's conviction and sentence in 1989. (A-1242-87T4, February 28, 1989). Point IV raised by defendant on appeal was that "THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE." We addressed the argument and held: "The sentence, although severe, was fully justified by the consideration of the statutory factors and the Yarbough guidelines. See State v. Yarbough, 100 N.J. 627, 643-644 (1985), [cert. denied], 475 U.S. 1014 (1986); State v. Roth, 95 N.J. 334, 364-365 (1984)." Defendant's petition to the Supreme Court for certification of our decision was denied in 1990. Defendant again raised the issue in his first PCR proceeding, and in his appeal of the denial of that petition his arguments included: "IV. THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF ON THE GROUNDS OF THE EXCESSIVENESS OF THE SENTENCE." We rejected the argument and affirmed, (A-3078-98T4, October 20, 2000), and the Supreme Court again denied defendant's petition for certification.

Clearly, the excessive sentence issue, including the consecutive aspect of the sentence, has been previously adjudicated and is barred from PCR review by Rule 3:22-5. It is also time-barred by Rule 3:22-12(a), and defendant has furnished no facts to establish excusable neglect or exceptional circumstances to justify the delay and relax the time-bar. See State v. Goodwin, 173 N.J. 583, 595 (2002).

PCR proceedings to correct an illegal sentence may be brought at any time. R. 3:22-12(a). Defendant argues that because the kidnapping and aggravated sexual assault counts were not merged his sentence is illegal. We reject this argument substantially for the reasons set forth by Judge Callahan in his thorough and well-reasoned oral decision of June 24, 2004.

 
Affirmed.

(continued)

(continued)

3

A-6885-03T5

January 19, 2006