STATE OF NEW JERSEY v. MICHAEL RAMIREZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3085-05T13085-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL RAMIREZ,

Defendant-Appellant.

___________________________

 

Submitted December 13, 2006 - Decided February 28, 2007

Before Judges Collester and Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, 2275-10-93.

Michael Ramirez, appellant pro se.

Joshua M. Ottenberg, Acting Camden County

Prosecutor, attorney for respondent

(Roseann A. Finn, Special Deputy Attorney

General, Acting Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Michael Ramirez appeals from the August 2, 2005 order of Judge Irwin J. Snyder denying defendant's motion to correct an illegal sentence. We affirm.

On December 12, 1992, in the City of Camden the defendant walked up to a stranger, Carl Stranahan, pointed a gun at his head, and demanded money. The gun was fired. Stranahan was shot in the head and killed. Defendant fled, throwing the gun into a sewer. He was apprehended and subsequently indicted for first-degree murder in violation of N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree felony murder in violation of N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (count four); third-degree unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5(b) (count five); and third-degree hindering apprehension in violation of N.J.S.A. 2C:29-3(b)(1) (count six).

On February 22, 1996, defendant waived his right to indictment and entered pleas of guilty to accusations charging him with first-degree aggravated manslaughter in violation of N.J.S.A. 2C:11-4(a)(1) (count one); third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (count two); and third-degree hindering apprehension in violation of N.J.S.A. 2C:29-3(b)(1) (count three). Pursuant to the plea agreement executed on the same date, the sentence recommended by the State was as follows: twenty-eight years imprisonment with fourteen years parole ineligibility on count one; four years imprisonment and two years parole ineligibility on count two to run consecutive to count one; and four years imprisonment with one year parole ineligibility for count three to run consecutive to the sentences imposed on counts one and two. The defendant in turn agreed to waive his right of appeal pursuant to R. 3:9-3(d).

Defendant was sentenced on April 26, 1996, by Judge Snyder in accordance with the plea agreement. After weighing the applicable aggravating and mitigating factors in conjunction with the plea agreement, Judge Snyder sentenced the defendant to an aggregate term of thirty-six-years imprisonment with seventeen years parole ineligibility. Defendant filed a pro se notice of appeal on August 30, 2000, but a notice of withdrawal of the appeal was submitted to this court through counsel on April 1, 2002. Accordingly, we dismissed defendant's direct appeal on April 2, 2002.

On June 30, 2005, defendant filed a pro se petition for post-conviction relief (PCR) to correct an illegal sentence pursuant to R. 3:22. He argued that his sentence of twenty-eight-years for first-degree aggravated manslaughter was illegal because it exceeded the twenty-year presumptive term and that the consecutive aspect of his sentence for third-degree unlawful possession of a weapon was also improper.

The matter was heard by Judge Snyder. He issued a letter opinion on August 2, 2005, denying defendant's petition on both procedural and substantive grounds. He held that defendant's contentions were not cognizable as a PCR petition since an excessive sentence contention could only be raised on direct appeal. State v. Clark, 65 N.J. 426, 437 (1974); State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), cert. denied, 59 N.J. 362 (1971); State v. Vance, 112 N.J. Super. 479, 481 (App. Div. 1970) cert. denied, 58 N.J. 97 (1971). He also held that since defendant was sentenced on April 26, 1996, and his PCR petition was not filed until June 30, 2005, the application was outside the five-year limit mandated by R. 3:22-12. Furthermore, defendant failed to establish facts to support a finding of "exceptional circumstances" justifying relaxation of the statutory time limits. State v. Mitchell, 126 N.J. 565, 580 (1992).

On appeal defendant asserts the following arguments for our consideration:

POINT I - THE SENTENCE IMPOSED AGAINST THE CHARGE OF AGGRAVATED MANSLAUGHTER HAS BEEN IMPOSED BEYOND THE PRESUMPTIVE TERM.

POINT II - THE TRIAL COURT ENGAGED IN A QUANTITATIVE ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS WHEN IN DECIDING TO IMPOSE THE SENTENCE.

We affirm substantially for the reasons set forth in Judge Snyder's written opinion of August 2, 2005. We add only the following comments.

In the course of his argument, defendant makes reference to

State v. Natale, 184 N.J. 458 (2005), and argues that as the result of that decision, his sentence for aggravated manslaughter in excess of the presumptive term was illegal and must be vacated. Natale specifically stated that its holding was applicable only to defendants with cases on direct appeal as of the date of the decision, August 2, 2005, and those defendants who raised claims at trial or on direct appeal under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The record is clear that this defendant did not raise a Blakely issue before the trial court at the time of his plea or sentence and his case was not pending on direct appeal as of the date of the issuance of the Natale decision. Natale, supra, 184 N.J. at 494. Since defendant did not satisfy the criteria for "pipeline" retroactivity set forth in Natale, his argument is without merit.

 
Affirmed.

(continued)

(continued)

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A-3085-05T1

February 28, 2007