Opinion
DOCKET NO. A-4131-10T1
02-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VANTREZ J. FRANKLIN, Defendant-Appellant.
Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the briefs). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-07-0361.
Ferro and Ferro, attorneys for appellant (Nancy C. Ferro, on the briefs).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Vantrez J. Franklin appeals from the March 19, 2010 order denying his motion to correct an illegal sentence. Defendant's sentence arose out of Burlington County Indictment No. 99-07-0361 which charged him with first-degree murder, N.J.S.A. 2C:11-3a(1)/2C:11-3a(2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); two counts of first-degree robbery, N.J.S.A. 2C:15-1a(1) (counts three and six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count seven).
On January 18, 2000, defendant, pursuant to a negotiated plea agreement, entered a plea of guilty to count one, as amended to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), and count seven, second-degree aggravated assault. In exchange for his guilty plea, the State recommended a sentence on count one of twenty-five years incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and on count seven, a sentence of eight years incarceration, also subject to NERA, concurrent to the sentence imposed on count one. On March 3, 2000, defendant was sentenced in conformity to his negotiated plea agreement.
Defendant did not file a direct appeal. On November 30, 2008, over eight years after sentencing, defendant filed a motion to correct an illegal sentence. On March 19, 2010, the motion judge denied defendant's motion finding that "it is clear that [defendant] did not receive an illegal sentence." It is from that decision that defendant appeals.
I.
On August 2, 1998, defendant was at a party at a private residence in Tabernacle Township. When defendant arrived at the party, he was in possession of an operable, loaded handgun. During the party, defendant got into a confrontation with Sean Blount and struck him in the head with the handgun, attempting or actually causing serious bodily injury to Blount. Later that evening, Jason Garrison asked defendant and his friends to leave the party. Defendant took the gun, pointed it at Garrison, pulled the trigger, shot and killed him. Defendant acknowledged that in so doing he was either going to cause death or serious bodily injury to Garrison.
On appeal, defendant raises the following issue for our consideration:
POINT I
DEFENDANT'S SENTENCE WAS NOT IMPOSED ACCORDING TO LAW AND SHOULD BE REVERSED.
A. The court did not adhere to the presumptive term in sentencing and made errors regarding the aggravating and mitigating factors.
B. Defendant's counsel gave ineffective assistance at sentencing.
C. The NERA penalty was not imposed according to the law.
II.
Rule 3:21-10(b)(5) provides that "an order may be entered at any time . . . correcting a sentence not authorized by law including the Code of Criminal Justice." We acknowledge that the law imposes no time limit on a challenge to an illegal sentence. State v. Romero, 191 N.J. 59, 80 (2007); State v. E.W., 413 N.J. Super. 70, 77-78 (App. Div. 2010). "There are two categories of illegal sentences: (1) those that exceed the penalties authorized by statute for a particular offense and (2) those that are not in accordance with the law, or stated differently, those that include a disposition that is not authorized by our criminal code." State v. Schubert, 212 N.J. 295, 308 (2012). N.J.S.A. 2C:11-4a(1) provides that an ordinary term of imprisonment for first-degree aggravated manslaughter ranges between ten and thirty years. Therefore, the twenty-five year incarceration sentence imposed upon defendant, subject to NERA, is not an illegal sentence.
Defendant argues that the imposition of NERA's period of parole ineligibility was applied in contravention of NERA's authorizing legislation and therefore is illegal. The illegal-sentence issue arises in the context of the version of NERA in effect when defendant committed the offenses to which he pled guilty, August 2, 1998. State v. Parolin, 171 N.J. 223, 230-233 (2002) (holding that the 2001 amendments to NERA should not be applied retroactively). The version of NERA in question became effective on June 9, 1997, and provided:
a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section.Defendant asserts that the elements of a NERA violent crime must be proved by the State beyond a reasonable doubt, relying on State v. Ainis, 317 N.J. Super. 127, 136-137 (Law Div. 1998). However, the Supreme Court in Parolin specifically found that NERA's requirement of a hearing can be satisfied by the defendant's sworn testimony at a plea hearing. 171 N.J. at 231. Thus, we must examine the basis for the plea.
. . . .
d. For the purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S.A. 2C:11-1, or uses or threatens the immediate use of a deadly weapon . . . .
. . . .
e. A court shall not impose sentence pursuant to this section unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed. The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue.
[N.J.S.A. 2C:43-7.2(a), (d), (e) (2000).]
Defendant testified that he had an operable loaded weapon in his possession and used it to kill Garrison. He further testified that he used the same weapon in attempting to or actually committing a "serious bodily injury" to Blount. It is beyond peradventure that each crime to which defendant pleaded guilty was a "violent crime" triggering application of NERA. N.J.S.A. 2C:43-7.2(d) (2000). Because defendant's plea colloquy admitted this factor, no hearing was needed, and NERA was properly applied to his sentence and the sentence is not illegal.
Since the sentence is not illegal, defendant's challenge to the adequacy of the sentencing proceedings by which the penalty was imposed is untimely and otherwise barred by the court rules. Although couched in terms of a challenge to an illegal sentence, defendant actually argues as post-conviction relief (PCR) that the sentence was excessive because the court imposed a sentence longer than the "presumptive term" for the first-degree aggravated manslaughter conviction. This claim is not eligible for consideration for PCR. For example, arguments regarding "consecutive sentences or the absence of reasons for imposition of the consecutive sentences do not relate to the issue of sentence 'legality' and are not cognizable on PCR[.]" State v. Acevedo, 205 N.J. 40, 47 (2011). Also, "mere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground for [PCR] and can only be raised on direct appeal from the conviction." Id. at 46 (internal quotation marks and citations omitted).
Defendant's belated challenge to his sentence is also procedurally barred by Rule 3:22-4. The rule provides in relevant part:
Any ground for relief not raised in the proceedings resulting in the conviction, . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.
[R. 3:22-4(a).]
Defendant's claim of sentencing counsel's ineffectiveness for failing to present additional mitigating factors, and failing to adequately argue for a lesser sentence, amount to no more than an excessive sentencing argument cloaked in "ineffective assistance of counsel" language. Such excessive sentencing claims, however, are not cognizable on PCR review. Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 3:22-2 (2013); Acevedo, supra, 205 N.J. at 45-46. Nor are they appropriate on review of the denial of a motion to correct an illegal sentence.
These claims are appropriately procedurally barred in this matter as capable of having been raised on direct appeal. R. 3:22-4. In any event, even if properly cognizable, we are persuaded that all of the alleged deficiencies clearly fail to meet the Strickland test. The claims now being made would not have resulted in a different, more favorable outcome for defendant, and none required an evidentiary hearing.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (stating that "defendant must show that counsel's performance was deficient;" and that "the deficient performance prejudiced the defense"); see also State v. Fritz, 105 N.J. 42 (1987) (adopting the Strickland standard in New Jersey).