NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM

Defendant appeals from the April 3, 2008 amended judgment of conviction entered on his motion to vacate an allegedly illegal sentence originally imposed on January 6, 2000.1 For the reasons that follow, we affirm.

The pertinent facts are as follows. Tried to a jury in 1999, defendant was convicted of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and second-degree eluding, N.J.S.A. 2C:29-2(b). On the armed robbery counts, defendant received two concurrent twenty-year terms of imprisonment, each with a ten-year parole ineligibility period under the Graves Act, N.J.S.A. 2C:43-6(c), and an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He received a consecutive ten-year term on the eluding charge and a concurrent five-year term for receiving stolen property.

Defendant appealed, primarily contending that the denial of a jury charge on his NERA counts violated his constitutional rights and that his sentence was manifestly excessive. In a pro se supplemental brief, defendant also challenged certain jury instructions and the out-of-court identification procedures.

We affirmed, and, in language pertinent to this appeal, rejected defendant's NERA argument as follows:

We noted that State v. Johnson, 160 N.J. 523, 543 (2001), required that "[a] factual predicate for a NERA sentence must be found by a jury `beyond a reasonable doubt.'" Id. at 8. We concluded that the evidence in defendant's case satisfied that requirement as it was "clear that [co-defendant] was not only armed with a deadly weapon during the robbery, but he also threatened the victims with it, satisfying the NERA definition of a `violent crime.'" Id. at 12-13. Therefore, "notwithstanding the fact that the trial court failed to specifically instruct the jury to find the NERA violent crime predicate, the facts adduced at trial establish that the jury made the violent crime finding beyond a reasonable doubt." Id. at 13.

Defendant "also questioned whether the Graves Act violated the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d 435 (2000)." Id. at 13. As we noted, "[d]efendant acknowledged, however, that if the trial court's decision to apply NERA is affirmed, the Graves Act issue becomes irrelevant. Since we have concluded the trial court properly applied NERA, we need not address the Graves Act issue." Ibid. The Supreme Court denied defendant's petition for certification on March 20, 2002. State v. Chamblain, 171 N.J. 444 (2002).

On January 3, 2007, defendant filed a motion to correct an illegal sentence. The trial judge agreed that defendant was entitled to re-sentencing under State v. Natale, 184 N.J. 458 (2005), decided after defendant's original sentencing, which instructed sentencing judges to "balance the aggravating and mitigating factors" without reference to the "fixed point of a statutory presumptive." Id. at 488. In sentencing defendant following trial, the judge had expressly referred to the "presumption that [he] would go to prison for [fifteen] years," noting further that "[t]hat presumption [arises] when the aggravating factors so clearly and substantially outweigh the mitigating factors."

On April 3, 2008, the judge re-sentenced defendant to the same sentence originally imposed. The judge found that the jury verdict represented a finding beyond a reasonable doubt that defendant had committed an act of violence consisting of force or threats to the victim. The judge further found that defendant had raised his Graves Act and NERA arguments at trial and on appeal and offered nothing new to warrant a different result on his motion.

The judge determined that the following aggravating factors applied, as they did at the first sentence: number three (the risk that defendant will commit another offense); number six (the extent of defendant's prior criminal record and seriousness of the offense of which he has been convicted); and number nine (the need for deterring defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge found one mitigating factor applied, namely remorse. N.J.S.A. 2C:44-1(b)(9).

On appeal, defendant raises the following contentions for our consideration:

Having reviewed these contentions in light of the record and controlling legal principles, we are satisfied that they lack sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(2), beyond the following comments.

Defendant's first and third arguments were expressly addressed and resolved in our prior opinion, particularly in our discussion of Johnson, supra, 166 N.J. at 543, and how defendant's case satisfied Johnson's requirements. Defendant now contends that the decision in State v. Franklin, 184 N.J. 516 (2005), provides him new grounds for relief. We are satisfied, however, that Franklin in no way modified the holding in Johnson, and, therefore, provides no support for defendant's position.

In that case, the defendant was sentenced under the Graves Act to an extended term of twenty years on his conviction for second-degree passion/provocation manslaughter. Id. at 520. While defendant's appeal was pending, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d, 435 (2000), which held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455.

Based on Apprendi, the defendant in Franklin argued that his extended term sentence was not authorized by the jury's verdict and, therefore, was unconstitutional. Franklin, supra, 184 N.J. at 526. We rejected that argument and affirmed the defendant's sentence in an unpublished order filed in September 2001. Ibid. The Supreme Court denied the defendant's petition for certification. State v. Franklin, 170 N.J. 389 (2001).

The defendant then filed a petition for post-conviction relief (PCR), raising the same Apprendi claim he had argued on direct appeal. The PCR court denied relief; the defendant appealed and we affirmed. Franklin, supra, 184 N.J. at 526.

In reversing, the Supreme Court held that the defendant's PCR argument was not "procedurally barred because his Apprendi claim was raised and rejected on direct appeal." Id. at 528. The Court found that the case fell "into the very limited exception carved out of Rule 3:22-5. It raises a legitimate and important constitutional question concerning whether judges may determine facts that will authorize an extended term under the Graves Act." Ibid.

The Court then found that the "second-offender provision" of the Graves Act3 "removed from the jury's consideration a critical fact — whether defendant was armed[,]" and, therefore, "[t]he judge's finding that defendant possessed or used a gun in the commission of the crime resulted in the imposition of a sentence beyond the range authorized by the jury verdict in violation of the Sixth Amendment and Fourteenth Amendment." Id. at 534.

Thus, Franklin concerned the extended-term sentencing of repeat offenders under the Graves Act; it did not address parole disqualifiers. In fact, the Court expressly noted:

[Id. at 534, n.6.]

Here, defendant was sentenced to a term within "the standard sentencing range[,]" ibid., for a first-degree offense. Therefore, neither the length of his sentence nor his parole disqualifier runs afoul of Franklin as he claims.

Defendant's next argument, that the judge erred in not considering the applicability of the Graves Act, flies in the face of his acknowledgement in his prior appeal that if the NERA parole disqualifier were affirmed, the Graves Act issue became irrelevant. Chamblain, supra, slip op. at 13.4 As we have now reaffirmed our prior holding that "the trial court properly applied NERA," Ibid., this issue is of no moment.

Finally, the trial judge correctly re-sentenced defendant based upon his record at the time of his original sentencing. Natale expressly dictates that, in every case affected by that decision,

Defendant continues to maintain that he was not subject either to NERA or to the Graves Act because he was acquitted of the weapons offenses. This contention was also laid to rest in our prior decision where we noted that defendant was convicted of first-degree robbery under the theory of accomplice liability and, as such, was subject to NERA. We found that "clear" evidence that the co-defendant "was not only armed with a deadly weapon during the robbery, but . . . also threatened the victims with it, satisf[ied] the NERA definition of a violent crime." Chamblain, supra, slip op. at 13. See State v. Rumblin, 166 N.J. 550, 555 (2001). Moreover, as noted, defendant acknowledged that his Graves Act issue would become "irrelevant" if the NERA parole disqualifier was affirmed.

Thus, defendant's argument that the judge should have sentenced defendant "anew" by considering the applicability of NERA and the Graves Act to his case is without merit. The judge properly complied with Natale in re-sentencing defendant.

Affirmed.