Opinion
DOCKET NO. A-6253-10T4
03-07-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARIANO CARRION-COLLAZO, Defendant-Appellant.
Mariano Carrion-Collazo, appellant pro se. Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 82-00-0734.
Mariano Carrion-Collazo, appellant pro se.
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Mariano Carrion-Collazo appeals from a July 6, 2011 order of the Law Division denying his seventh petition for post-conviction relief (PCR). We affirm.
After a jury trial on this Mercer County indictment, defendant was convicted in 1983 of first-degree murder, N.J.S.A. 2C:11-3; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Defendant received an aggregate sentence of life in prison with a twenty-five-year period of parole ineligibility. Defendant's convictions and sentence were affirmed on direct appeal. State v. Carrion-Collazo, No. A-4108-82 (App. Div. Jan. 24, 1986).
Defendant's first PCR petition was granted by the Law Division, but we reversed the resulting order for a new trial and reinstated defendant's convictions and sentence. State v. Carrion-Collazo, 221 N.J. Super. 103 (App. Div. 1987). Defendant's petition for certification was denied. State v. Carrion-Collazo, 110 N.J. 171 (1988). Each of defendant's subsequent PCR petitions was denied.
Defendant's second application for PCR was denied in 1991 and we affirmed the denial. State v. Carrion-Collazo, No. 1144-91 (App. Div. Sept. 14, 1992). A petition for certification was denied. State v. Carrion-Collazo, 130 N.J. 601 (1992). In 1994, the Law Division denied defendant's third PCR petition. No appeal was filed. Defendant's fourth PCR petition was denied in 1995. He attempted to file a direct appeal as of right pursuant to Rule 2:2-1(a)(1) to the Supreme Court, which was dismissed. State v. Carrion-Collazo, 149 N.J. 403 (1997). Defendant's fifth PCR petition was denied in 2000. No appeal was filed. Finally, defendant's sixth PCR petition was denied in 2002. We affirmed the denial. State v. Carrion-Collazo, No. A-5914-03 (App. Div. Feb. 10, 2006).
In his seventh petition for PCR, defendant argued his sentence was "illegal" because he received an "extended sentence of life in prison," which he did not believe was authorized by law. After hearing oral argument, the trial judge denied the petition in an oral decision. The judge found the petition was untimely under the five-year time bar established by Rule 3:22-12.
However, the judge also found the petition should be denied on the merits. In finding defendant's sentence was appropriate, the judge relied upon the Supreme Court's decision in State v. Maguire, 84 N.J. 508 (1980). In Maguire, the Court held that "an extended term of life imprisonment is an available punishment in murder cases[.]" Id. at 528. The judge stated:
The defendant argues that an extended term sentence of life in prison was not authorized unless the Court made the special findings that the defendant had committed the murder for hire or he was a persistent offender or other such special factors. The defendant is wrong. [In] State v. Maguire, . . . the Court held that under the code the crime of murder is subject to a discretionary extended term of life imprisonment without separate proof of the specific enhancement criteria in [N.J.S.A.] 2C:44-3. And State v. Maguire discusses at length that murder had typically been punished by death, and short of death the Legislature allowed for life in prison. The Supreme Court thought it extremely unlikely that the Legislature would have reduced the penalties for murder to the point where someone who committed murder would not be subject to life imprisonment unless special enhancing factors were found.Thus, the judge ruled "defendant did not receive an illegal sentence. He received a sentence permitted by the law at the time." Accordingly, the judge denied defendant's petition for PCR.
On appeal, defendant presents the following arguments:
POINT I: This Court Should Grant Appellant Relief on His Illegal Sentence Claim, Since the Issue Was Improperly Raised As an "Unreasonable" Sentence on Direct Appeal, Instead Of an Illegal Sentence as a Matter of Fundamental Fairness and In the Interest of Justice.Our review of the record convinces us that the trial judge acted properly in denying defendant's seventh petition for PCR. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore affirm.
POINT II: This Court Should Retain Original Jurisdiction and Modify Appellant's Sentence, since He Was Exposed to an Extended Term Life Sentence, Instead Of An Ordinary Term for Murder, in Violation of U.S. Const. Amends Xiv and Viii, as Well as N.J. Cont. [sic] Art 1, Para 12.
POINT III: Appellant Seeks the Court to Accept the Mitigating Evidence in His Behalf and Incorporate Such Information into the Record.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION