Opinion
DOCKET NO. A-0529-10T4
03-07-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL CARABALLO, Defendant-Appellant.
Daniel Caraballo, appellant pro se. Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 81-11-1779.
Daniel Caraballo, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Daniel Caraballo (Caraballo) appeals from the denial of a motion "to correct an illegal sentence" pursuant to Rule 3:22-12. Caraballo was found guilty of murder contrary to N.J.S.A. 2C:11-3(a) and related charges following a jury trial and was sentenced on April 18, 1985. He challenges only his sentence for murder, life in prison with a twenty-five year period of parole ineligibility. Caraballo contends that the sentencing judge mis-characterized his prior New York convictions as "grand larceny and robbery" whereas, he was actually convicted of possession of stolen property and attempted robbery. He adds that, "the life term may not have been imposed had the offenses been fairly considered[.]" He also contends that the sentencing judge improperly considered as an aggravating factor the "gravity and seriousness of the harm inflicted upon the victim" pursuant to N.J.S.A. 2C:44-1a(2) in connection with his murder conviction, thereby impermissibly double-counting. See State v. Jarbath, 144 N.J. 394 (1989).
This motion is Caraballo's fourth application for post-conviction relief. On direct appeal, we affirmed his conviction in an unreported opinion and the Supreme Court denied his petition for certification. 110 N.J. 292 (1988). Since then, we have affirmed the denial of Caraballo's first three petitions for post-conviction relief and the Supreme Court denied certification on each appeal.
The motion judge denied Caraballo's motion to correct an "illegal sentence" and explained that, with regard to the contention that the trial judge mis-characterized Caraballo's prior offenses, "this point should be procedurally barred since the claims stated could have been raised in one of [Caraballo's] previous motions, namely [Caraballo's] third petition for post-conviction relief which is based on a claim of illegality of sentence . . . ." Moreover, citing State v. McGuire, 84 N.J. 508 (1980), the motion judge found that the sentence imposed was authorized by statute and thus not illegal. With respect to the double-counting claim, the motion judge again recognized that a life sentence was permissible and thus was not an illegal sentence, and that the trial judge's purported double-counting does not entitle Caraballo to relief under Rule 3:22-12.
On appeal, Caraballo presents the following arguments:
Point I
The lower court's determination that appellant failed to state a claim upon which relief could be granted was erroneous.
Point II
The lower court's determination that the trial court's imposition of a life term was appropriate without the necessity of enhancement findings was erroneous because the sentencing court double-counted aggravating factors to impose a life sentence.
Defendant's arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). We note only that none of defendant's arguments relate to the legality of his sentence, see State v. Flores, 228 N.J. Super. 586, 592-97 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), and thus the five-year limitation period on the filing of a post-conviction relief provided by Rule 3:22-12(a) applies to Caraballo's motion. In State v. McIlhenny, 357 N.J. Super. 380, 386-87 (App. Div. 2000), certif. denied, 176 N.J. 430 (2003), we observed:
With affirmance on direct appeal and denial of his earlier PCR petition, the case reached its legal and logical terminus. To consider legal arguments available to a defendant on direct appeal years after conviction and sentence does not serve justice. Rather it mocks the reasonable time limits of the Rules of Criminal Practice and insults the laudatory purpose of post-conviction relief. In the case of this guilty murderer enough is enough.These observations apply with equal force to the present case.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION