Opinion
DOCKET NO. A-3041-12T1
06-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KAREEM MCCARGO, Defendant-Appellant.
Kareem McCargo, appellant pro se. Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Harris and Sumners.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-05-1316.
Kareem McCargo, appellant pro se.
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This appeal arises from the denial of defendant's motion to correct an illegal sentence. Defendant raises the following arguments on appeal:
POINT I
THE DEFENDANT'S CONSTITUTIONAL RIGHTS [WERE] VIOLATED WHEN HE WAS HELD TO ANSWER FOR THE STATU[T]E THAT WAS NOT SUPPORTED OR PROVEN BY FACT FINDINGS.
POINT II
THE DEFENDANT ARGUE[S] THAT THE TRIAL COURT VIOLATED HIS RIGHTS TO DUE PROCESS WHEN HE WAS NEVER GIVEN A HEARING AFTER HIS CONVICTION TO CONTROVERT AGAINST THE NO EARLY RELEASE ACT.
We have considered these arguments and affirm.
I.
On October 16, 2001, following a three day jury trial, defendant Kareem McCargo was found guilty of first-degree carjacking, N.J.S.A. 2C:15-2(a)(2); first-degree robbery, N.J.S.A. 2C:18-2; second-degree burglary, N.J.S.A. 2C:18-2; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a.
On December 21, 2001, Judge Samuel D. Natal sentenced defendant to a term of seventeen years for carjacking, with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, because of the jury's finding that in the course of the carjacking, defendant used or threatened the immediate use of, or was armed with a deadly weapon. The convictions for robbery and possession of a weapon for an unlawful purpose were merged with the carjacking conviction for sentencing purposes. In addition, defendant was sentenced to a concurrent eight-year term with three-year parole ineligibility on the burglary conviction. Thereafter, defendant filed his first of numerous requests for judicial relief.
On April 11, 2003, we affirmed the conviction and sentence. State v. Kareem McCargo, No. A-3686-01 (App. Div. April 11, 2003) (McCargo I). In doing so, we rejected defendant's assertion that the jury had no rational basis for concluding that the gun used in the carjacking was a deadly weapon within the meaning of N.J.S.A. 2C:4 3-7.2. Defendant's appeal to the New Jersey Supreme Court was unsuccessful when his petition for certification was denied. State v. Kareem McCargo, 177 N.J. 511 (2003).
Defendant subsequently filed four unsuccessful petitions for post-conviction relief (PCR). The initial PCR denial was appealed to our court. We rejected, among other arguments, defendant's contention that the PCR "judge erred in holding" that the NERA sentence was "legally imposed." State v. Kareem McCargo, No. A-6318-04 (App. Div. June 4, 2007) (McCargo II). Defendant's petition for certification was denied on September 11, 2007. State v. Kareem McCargo, 192 N.J. 480 (2007). In his third and fourth PCR petitions, defendant contended the trial judge did not have the legal basis to impose a NERA sentence for carjacking. These petitions were denied, and dismissed with no appeals taken to this court.
Undeterred, defendant filed a motion to correct an illegal sentence. Judge Natal, who had denied all defendant's prior PCR applications, denied the motion on October 3, 2012. This appeal followed.
The motion judge recognized that because defendant "assert[ed] an imposition of an illegal sentence as the basis for relief, this petition will not be time-barred under Rule 3:22-12(a)." See also R. 3:21-10(b).
II.
Defendant's arguments on appeal are similar to the arguments he raised in his prior appeals and PCR applications, which, as previously noted, were found to have no merit. We note he fails to address Judge Natal's determination that his motion is procedurally denied because the issues raised in the motion could and should have been raised on direct appeal in his initial appeal, following his conviction, on April 11, 2003. As Judge Natal addressed the merits of defendant's motion, we likewise will address the merits of the substantive arguments raised in this appeal.
In Point I, defendant contends his due process rights under the U.S. Constitution Fourteenth Amendment and New Jersey Constitution (1947) Article 1, paragraph 1, were violated because there were no facts presented to the jury that he possessed a deadly weapon pursuant to NERA, N.J.S.A. 2C:43- 7.2(d), to warrant an eighty-five percent parole ineligibility sentence.
In the context of defendant's assertions, our review is:
"to determine first, whether the correct sentencing guidelines, or in this case, presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors."
[State v. Roth, 95 N.J. 334, 365-366.]
As the State correctly points out, defendant's arguments "have already been repeatedly rejected by both the trial court and this court." In McCargo I, we held "there was ample evidence on which the jury could find beyond a reasonable doubt, as it did, that the carjacking was committed by defendant, that he did so by using a deadly weapon, namely a gun." Id. (slip op. at 7). Further, we held "that the jury was correctly charged on the definition of deadly weapon and that a separate question was included on the verdict sheet relating to the use of a deadly weapon for this purpose." Ibid. Defendant's challenge to his NERA sentence was again rejected when this court affirmed the denial of his first PCR petition in McCargo II, (slip op. at 10-11).
Accordingly, we agree with Judge Natal that the application of NERA to defendant's sentence was based on the jury's verdict of first-degree carjacking, supported by credible evidence and as determined by our previous rulings is consistent with correct sentencing guidelines.
In Point II, defendant continues to argue that his federal and state constitutional due process rights were violated because he was not afforded a hearing pursuant to N.J.S.A. 2C:43-7.2(e) prior to his sentencing. We find no merit to this argument.
Defendant's argument for a hearing was properly rejected by the motion judge. Judge Natal opined that it was an earlier version of N.J.S.A. 2C:43-7.2(e), which required a pre-sentence hearing be held to allow a defendant to controvert the evidence against him before a NERA sentence can be imposed. We agree that defendant's reliance on this earlier version is erroneous.
Judge Natal ruled,
[a]ny Constitutional claims based on Due Process were put to rest by the Supreme Court in State v. Johnson, 166 N.J. 523 (2001). In Johnson, the Supreme Court stated that, in order to avoid constitutional issues, subsection (e) of NERA "require[s] that a jury determine, beyond a reasonable doubt, that a defendant committed a violent crime within the meaning of NERA before a sentencing court may impose the statue's mandatory minimum sentencing structure." Johnson, 166 N.J. at 549. Further, the Court
expressly applied the holding in Johnson only prospectively to all appeals pending as of February 28, 2001 in which the issue is raised and to all trials implicating NERA after that date. Id. [Defendant] not only filed [his] appeal in 2003 but [his] trial transpired in October 2001; both dates clearly followed the February 28, 2001 holding in Johnson. Additionally[,] the subsection (e) provision was deleted by the New Jersey Legislature on June 29, 2001, prior to [his] sentencing in December 2001.
In effect, the circumstances surrounding the issue [defendant] raise[s] regarding violation of Due Process did not exist at the time of [his] sentencing. In effect, the Legislature removed the provision requiring a pre-sentencing hearing during which the Court examined evidence and made determinations on the application of NERA. Further, the Supreme Court determined that a conviction by a jury beyond a reasonable doubt was all that the Court required for applying the provisions of NERA. Therefore, [defendant's] motion on this ground is denied.
We agree, for the reasons stated by Judge Natal, defendant was not entitled to a hearing prior to the imposition of his NERA sentence based upon the sentencing guidelines in effect.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION