STATE OF NEW JERSEY v. FRANK VERGILIO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5390-05T15390-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANK VERGILIO,

Defendant-Appellant.

_______________________________________

 

Submitted February 15, 2007 - Decided March 13, 2007

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 90-05-1597.

Frank Vergilio, appellant, pro se.

Joshua M. Ottenberg, Acting Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Frank Vergilio appeals from the order denying his second petition for post-conviction relief (PCR) in which he claimed that his sentence was illegal pursuant to State v. Natale, 184 N.J. 458 (2005) (Natale II). We affirm.

Defendant was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); second-degree attempted kidnapping, N.J.S.A. 2C:13-1(b)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). He was sentenced to a fifty-year aggregate term of incarceration with a fifteen-year period of parole ineligibility. His conviction was affirmed on appeal. State v Vergilio, No. A-6193-95T4 (App. Div. January 2, 1998) (unpublished opinion). The Supreme Court denied defendant's petition for certification. State v. Vergilio, 123 N.J. 216 (1998). The facts surrounding the appeal were set forth in our earlier unpublished opinion:

At approximately 9:00 in the evening, E.C. drove home from a volleyball game and observed a man in a hooded sweatshirt near the mailboxes by her apartment complex. After she parked her car and walked to the passenger's side to retrieve her gym bag and pocketbook, she heard a noise. She looked up and saw the man in the hooded sweatshirt coming toward her. The man threw her to the ground, wrapped his arm around her neck and covered her mouth, telling her to shut up. When the victim tried to hit him, the man pounded her head onto the ground and said again, "Shut up or I'll kill you." The man then dragged E.C. around her car, and as they stepped over the curb they both tripped and fell. A neighbor heard her scream, looked out of the window and saw a dark-clad figure leaning over the victim. The neighbor called out to them and the attacker fled.

Nine hours later, across town in the same municipality, N.Z. was jogging in the early morning. As she slowed down to check traffic, she heard someone behind her. As she turned her head, she was hit four or five times on the back of her head with a rock. She fell on her back, looked up and saw the face of the attacker. She began kicking violently as the attacker tried to grab her legs. She continued to kick as he carried her over his shoulder and walked over one hundred feet toward the end of a strip mall. He then dropped her on her head and straddled her as she struggled to escape. A passing newspaper delivery man saw the victim, who appeared unconscious during part of the time she was being carried, but also saw her struggle. He shouted at the attacker who then fled. N.Z. suffered a concussion, a skull fracture, and scalp contusions requiring fifty or sixty stitches.

Approximately one hour after the attack on the second victim, S.W. was assaulted en route to her school bus stop. A man pushed her to the ground and then carried her to an area between two houses with his hand over her mouth. He placed her on the grass and straddled her. As the attacker attempted to unbutton his pants, S.W. tried to hit him, but he struck her in the head with his fist four or five times. After a woman from a nearby house saw the incident and tapped on her window, the attacker fled. . . . [D]efendant was indicted for crimes against all three victims and tried by a jury.

Defendant filed his first PCR petition on July 15, 1998. Judge Baxter, who presided over the trial, denied the motion, finding that defendant's arguments in the petition were barred by Rule 3:22-4 and Rule 3:22-5 and we affirmed her decision on appeal. On March 22, 2006, defendant filed his second PCR petition, which Judge Baxter denied as time barred pursuant to Rule 3:22-12 because defendant failed to demonstrate facts showing that delay in filing the petition on the most recent grounds was due to defendant's excusable neglect. This appeal ensued.

Defendant raises the following argument for our consideration:

POINT I

TRIAL COURT INAPPROPRIATELY DISMISSED A PETITION SEEKING POST-CONVICTION RELIEF INVOLVING AN ISSUE OF SENTENCE LEGALITY AND RETROACTIVE EFFECT ARISING IN LIGHT OF NEW RULE REVISIONS.

We have considered each of the issues raised by defendant's argument and the applicable law, and we are satisfied that none of them are of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

In Natale II, supra, the Court held that the Criminal Code's presumptive sentencing system, which allowed judges to sentence beyond the presumptive term based on their findings of aggravating and mitigating factors, was incompatible with Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403, 412 (2004), and violated the Sixth Amendment right to a trial by jury. Natale II, 184 N.J. at 484. To remedy the constitutional infirmity, presumptive terms were eliminated. Id. at 487. Judges must still balance the aggravating and mitigating factors, but "will no longer be required to do so from the fixed point of a statutory presumptive." Id. at 488.

The Court applied its holding retroactively to those cases pending in the pipeline, expressly ruling that relief did not extend to collateral review. Id. at 494. Defendant was originally sentenced on January 19, 1996. The time within which to present his PCR claims expired in 2001. Thus, Judge Baxter properly ruled that defendant's sentence did not constitute an illegal sentence otherwise justifying relief from the five-year strictures of Rule 3:22-12. Nor is there any evidence in the record of defendant's numerous claims of errors raised in his prior appeals that he preserved any Blakely/Natale II claims.

The order appealed from is affirmed.

 

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A-5390-05T1

March 13, 2007