STATE OF NEW JERSEY v. ERNESTO DEL VALLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5346-05T55346-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERNESTO DEL VALLE,

Defendant-Appellant.

____________________________

 

Submitted March 14, 2007 - Decided May 4, 2007

Before Judges Collester and Lyons.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, I-1390-12-87.

Ernesto Del Valle, appellant pro se.

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Lisa M. DeMartini,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Ernesto Del Valle appeals from the denial of his motion to correct an illegal sentence. He argues the following points:

POINT I - DEFENDANT'S STATE CONSTITUTIONAL RIGHT TO PRESENTATION AND INDICTMENT BY GRAND JURY WAS VIOLATED WHEN THE EXTENDED TERM AND THE AGGRAVATING FACTORS USED TO SUPPORT IT WERE NOT CHARGED IN AN INDICTMENT.

POINT II - DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A JURY TRIAL WERE VIOLATED WHEN THE TRIAL JUDGE FOUND THE EXTENDED TERM AND THE AGGRAVATING FACTORS USED TO SUPPORT IT TO INCREASE DEFENDANT'S SENTENCE BEYOND THE PRESCRIBED MAXIMUM TERM.

Following receipt of the brief of the State, defendant filed an amended brief in which he asserted the following legal arguments:

DEFENDANT'S DUE PROCESS WERE (SIC) VIOLATED BASED UPON INCONSISTENT REPORTS AND (OTHER THAN THE FACTS OF PRIOR CONVICTIONS OR PLEA AGREEMENT TRANSCRIPT) THAT INCREASED THE PENALTY BEYOND THE PRESCRIBED STATUTORY MAXIMUM & NOT SUBMITTED TO GRAND JURY AND RETURNED IN THE INDICTMENT, DEFENDANT NEVER WAIVER (SIC) THAT RIGHT.

AMENDED LEGAL ARGUMENT

POINT I - TRIAL COUNSEL FOR THE DEFENDANT WAS INEFFECTIVE AND NEGLECT (SIC) IN FAILING TO DISCLOSE FALSE ACCUSATIONS, INCOMPATIBLE REPORTS AND FABRICATED CHARGES USED TO EXTENDED TERM (SIC) AND GRAVES ACT AND NOT OBJECTING TO OR CHALLENGING COURTS AGGRAVATING FACTORS.

Tried to a jury, defendant was convicted of numerous crimes, including first-degree kidnapping, first-degree armed robbery, two counts of second-degree burglary while armed, third-degree unlawful possession of a weapon, third-degree criminal restraint and fourth-degree aggravated assault. He initially received an aggregate sentence of life plus forty-five years with a forty-seven and one-half year parole disqualifier. On appeal we affirmed defendant's conviction but modified his sentence to life plus twenty-five years with a parole disqualifier of thirty-seven and one-half years. Subsequently, the New Jersey Supreme Court denied certification. State v. Del Valle, 133 N.J. 444 (1993).

On August 10, 1993, defendant filed a motion to correct an illegal sentence or alternatively for a change in sentence based upon an argument not raised on his direct appeal that N.J.S.A. 2C:44-5(a)(2) applies to mandatory extended terms as well as discretionary extended terms. The hearing judge treated defendant's motion as a petition for post-conviction relief and denied the application on June 28, 1994. We affirmed on the excessive sentencing appeal calendar for the reasons expressed by the motion judge, and the Supreme Court denied certification. State v. Del Valle, 143 N.J. 519 (1996).

Defendant filed two federal habeas corpus petitions with the United States District Court, both of which were denied. He then filed a petition for post-conviction relief on September 6, 1996 and an amended petition on November 26, 1996, in which he asserted that the State failed to comply with the Interstate Agreement on Detainers Act and that newly discovered evidence should be considered. The petition was denied, and we affirmed on May 4, 1999.

Defendant filed this pro se motion to correct an illegal sentence on March 31, 2006. Judge Kevin G. Callahan considered the matter and denied defendant's motion in a letter opinion of May 17, 2006. Commenting on defendant's application based on the holding of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005), Judge Callahan stated,

It is important to understand that the court in Natale made clear that "pipeline retroactivity" is to be applied to cases on direct appeal as of the date of its decision and to those who raised claims under Blakely on direct appeal. Id. This court finds that Petitioner's claim falls into neither of these categories and is therefore not entitled to relief under Natale. The court specifically held that "full retroactivity would overwhelm our courts with resentencings and impose a devastating burden on the judiciary, and is not warranted under the circumstances." Id. To permit you to raise this issue here is in direct conflict with the restructured sentencing scheme envisioned by the Natale court.

Notwithstanding the fact that your motion falls outside the realm of Natale, it is important to understand that Natale stands for the principle that judges may continue to weigh aggravating and mitigating factors in sentencing but will no longer be required to do so from a fixed presumptive position. Id. On this point, Natale states in pertinent part, that "[j]udges are still empowered to identify and assess both the applicable mitigating and aggravating factors, but are simply not constrained by the 'fixed point of a statutory presumptive' term." Id. at 488. Thus, the issue raised in your motion is without merit.

We affirm substantially for the reasons set forth by Judge Callahan. Since defendant's additional argument of ineffective assistance by trial counsel could reasonably have been raised during prior proceedings, it is barred as a ground of relief pursuant to R. 3:22-4.

Affirmed.

 

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A-5346-05T5

May 4, 2007