STATE OF NEW JERSEY v. WILLIAN G. KING

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5510-16T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WILLIAN G. KING, a/k/a
WILLIAM G. KING,

     Defendant-Appellant.
__________________________

                    Submitted December 19, 2018 – Decided January 10, 2019

                    Before Judges Fuentes and Vernoia.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Accusation No. 17-07-
                    0612.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Al Glimis, Designated Counsel, on the
                    brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Carol M. Henderson, Assistant Attorney
                    General, of counsel and on the brief).

PER CURIAM
       Defendant Willian G. King appeals from the five-year sentence with a

two-and-one-half year period of parole ineligibility that was imposed following

his guilty plea to third-degree possession with intent to distribute cocaine in

violation of  N.J.S.A. 2C:35-5(a)(1) and  N.J.S.A. 2C:35-5(b)(3).   We affirm.

        Defendant presents the following arguments for our consideration:

              POINT I

              THE IMPOSITION OF A DISCRETIONARY
              PERIOD OF PAROLE INELIGIBILITY IS
              UNCONSTITUTIONAL     PURSUANT     TO
                      [1]
              ALLEYNE AND MUST BE STRICKEN BY THIS
              COURT. THE NEW JERSEY SUPREME COURT
              RECENTLY GRANTED CERTIFICATION TO
              DECIDE WHETHER THE TYPE OF PAROLE
              DISQUALIFIER IMPOSED IN THIS CASE IS
              UNCONSTITUTIONAL PURSUANT TO ALLEYNE.

              A. Alleyne's Edict That Any Fact That Increases The
              Mandatory Minimum Is An "Element" That Must Be
              Submitted To The Jury Appl[i]es To Periods of Parole
              Ineligibility.

              B. Mr. King's Sentence.

              POINT II

              IN THE ALTERNATIVE, THIS MATTER SHOULD
              BE REMANDED FOR RESENTENCING BECAUSE
              THE SENTENCING COURT FAILED TO ENGAGE
              IN A QUALITATIVE ANALYSIS OF THE

1
    Alleyne v. United States,  570 U.S. 99 (2013).


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             SENTENCING FACTORS IT FOUND; A REMAND
             IS ALSO REQUIRED TO CORRECT THE
             JUDGMENT OF CONVICTION.

      We find defendant's substantive arguments to be without sufficient merit

to warrant discussion in a written opinion, R. 2:11-3(e)(2), and offer only the

following brief comments.

      Defendant argues the court's imposition of a period of parole ineligibility

under  N.J.S.A. 2C:43-6(b) is unconstitutional because it deprived him of his
 Sixth Amendment right to a trial by jury. Our Supreme Court rejected the

identical argument in State v. Kiriakakis, __ N.J. __, __ (2018) (slip op. at 2-4),

and we find no basis to depart from that ruling here.

      Defendant's contention that the court erred by failing to conduct a

qualitative assessment of the aggravating and mitigating factors under  N.J.S.A.

2C:44-1(a) and (b) is belied by the record. The court found aggravating factors

three, the risk defendant would commit another offense,  N.J.S.A. 2C:44-1(a)(3);

six, the extent and seriousness of defendant's prior record,  N.J.S.A. 2C:44-

1(a)(6); and nine, the need to deter defendant and others from violating the law,

 N.J.S.A. 2C:44-1(a)(9), and gave each "significant and great weight." The court

did not find any mitigating factors, see  N.J.S.A. 2C:44-1(b)(1) to (13), and

determined    the   aggravating    factors   "substantially    outweigh[ed]     the


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                                        3
[nonexistent] mitigating" factors. We affirm the sentence because the trial court

followed the sentencing guidelines, its findings of fact and application of

aggravating and mitigating factors is based on competent, credible evidence, and

its "'application of the sentencing guidelines to the facts" does not "shock[] the

judicial conscience." State v. Bolvito,  217 N.J. 221, 228 (2014) (quoting State

v. Roth,  95 N.J. 334, 364-65 (1984)).

      We last reject defendant's claim that the judgment of conviction should be

amended because it erroneously lists his first name as "Willian," instead of

"William." The record is devoid of any evidence supporting the assertion.

Defendant may present evidence supporting the claim to the trial court and

request an amendment of the judgment of conviction.

      Affirmed.




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