STATE OF NEW JERSEY v. WAYMON BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5330-05T35330-05T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYMON BROWN,

Defendant-Appellant.

_____________________________________________________________

 

Submitted: June 5, 2007 - Decided June 28, 2007

Before Judges Skillman and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 96-07-0661-I.

Waymon Brown, appellant, pro se.

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Patricia S. Toreki, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Waymon Brown, appeals the Law Division's March 9, 2006 order, denying his petition for post-conviction relief (PCR) and to correct an illegal sentence.

Defendant was convicted by a jury on December 13, 1996 of first-degree attempted murder, third-degree possession of a knife for an unlawful purpose, and third-degree unlawful taking of a means of conveyance. Defendant was sentenced to an aggregate extended term of eighty years imprisonment with thirty years parole ineligibility.

On November 6, 1998, defendant's conviction and sentence were affirmed by this court in an unpublished written opinion, A-3961-96T4, and defendant's petition for certification was denied by the Supreme Court on February 2, 1999, 158 N.J. 71.

On direct appeal we considered and rejected, among other assertions, defendant's contention that the trial court erred in imposing consecutive maximum sentences. We determined that the sentencing judge followed the proper standard in imposing an extended term, there was ample basis in the record for the judge's finding of aggravating factors N.J.S.A. 2C:44-1(a)(1), (3) and (9) and no mitigating factors, that the aggravating factors clearly and convincingly outweighed the mitigating factors, and that in imposing consecutive terms, the judge followed the guidelines set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Defendant, thereafter, filed a motion for PCR, which was denied by the trial court but remanded by this court on March 10, 2003 for further proceedings as required by State v. Rue, 175 N.J. 1 (2002). On October 24, 2003, after a hearing, the PCR court denied defendant's petition for PCR. The denial of PCR was affirmed by this court in an unpublished written opinion under Docket No. A-2474-03T4 on February 24, 2005. The Supreme Court denied certification on May 25, 2005, 183 N.J. 591.

We rejected, among other contentions, defendant's argument that the PCR court erred in failing to find that defendant's trial counsel was ineffective because he did not challenge the predicate convictions on which defendant's extended term was based.

On February 2, 2006, defendant filed a pro se petition for PCR and to correct an illegal sentence, which was denied by the PCR court pursuant to Rule 1:16-2, without oral argument, by order dated February 2, 2006. The court's March 9, 2006 order states:

[T]he Defendant's claim is without merit. The defendant's sentence comport[s] in all respects with the provisions of applicable statutes, based upon defendant's convictions under N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:5-1 "Attempted Murder" in the 1st degree, N.J.S.A. 2C:15-1 "Robbery" in the 1st degree, N.J.S.A. 2C:39-4d "Possession of a Weapon for an Unlawful Purpose["]; and pursuant to the "Extended Term" provisions of N.J.S.A. 2C:43-7. The sentence imposed is in complete accord with Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 520 U.S. 296 (2004).

Defendant challenges the aggravating factors found by the court at the time of his December 13, 1996 sentence. Defendant contends that as a result of the court's finding of aggravating factors that his Sixth Amendment right to trial by jury was violated contrary to 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). Defendant also asserts that the hearing concerning his eligibility for an extended term was in error and that his counsel was ineffective by not challenging the underlying convictions upon which his eligibility for an extended term was based.

Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any [PCR] proceeding . . . or in any appeal taken from such proceedings." Defendant's challenge to the sentencing court's findings of aggravating and mitigating factors was adjudicated and rejected in our November 6, 1998 decision on direct appeal. Additionally, we determined that the trial judge followed the proper standard under State v. Dunbar, 108 N.J. 80 (1987) in imposing an extended term. Defendant's claim of ineffective assistance of counsel for failing to challenge the predicate convictions upon which the extended term was based was adjudicated and rejected in our February 24, 2005 opinion, which affirmed the denial of defendant's first PCR petition.

Defendant incorrectly relies on Blakely and Apprendi to support his claim that his sentence is illegal because the sentencing court found aggravating factors not found by a jury. In State v. Natale, 184 N.J. 458, 494 (2005) our Supreme Court granted "pipeline retroactivity" to cases on direct appeal on the date of the Natale, decision, and to those defendants who raised Blakely claims at trial or on direct appeal. The court in Natale specifically did not apply "full retroactivity" to its decision, holding that "[f]ull retroactivity would overwhelm our courts with resentencings and impose a devastating burden on the judiciary, and is not warranted under the circumstances." Id. at 494. Defendant is not entitled to "pipeline retroactivity" because his direct appeal was concluded prior to the effective dates of Blakely, Apprendi, and Natale, and he did not raise Blakely issues at trial or on direct appeal.

Moreover, a new sentencing hearing is not required under Natale in cases where, as here, the Blakely issue was raised for the first time on a petition for PCR. Natale, supra, 184 N.J. at 494-96; State v. Abdullah 184 N.J. 197, 505-06 n.2 (2005). In addition, Natale, instructs that post-Blakely, with the exception of the removal of presumptive terms of imprisonment, the sentencing process remains essentially unchanged. 184 N.J. at 487. "Judges will continue to determine whether credible evidence supports the finding of aggravating and mitigating factors and whether the aggravating or mitigating factors preponderate." Ibid. Thus, the PCR court correctly found as reflected in the court's February 2, 2006 order that defendant's sentence comported with applicable statutory and case law.

After carefully considering defendant's contentions, we are satisfied that they are without sufficient merit to warrant any further discussion in a written opinion. They are essentially the same arguments previously presented by defendant on his direct appeal and in his first petition for PCR. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-5330-05T3

June 28, 2007