                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0829-17T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DANIEL CARABALLO,

     Defendant-Appellant.
_________________________

                    Submitted December 11, 2018 – Decided January 9, 2019

                    Before Judges Yannotti and Rothstadt.

                    On appeal from 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 (Marc A. Festa, Senior
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant appeals from an order dated July 11, 2017, which denied his

motion to correct an allegedly illegal sentence. We affirm.

      In 1981, a Passaic County grand jury charged defendant with the knowing

murder of Concepcion Navas, N.J.S.A. 2C:11-3 (count one); the attempted

murder of Romanita Rodriguez and Maria Vega, N.J.S.A. 2C:5-1, N.J.S.A.

2C:11-3 (count two); aggravated assault against Rodriguez and Vega, N.J.S.A.

2C:12-1(b)(1) (count three); making threats to kill Blanca Ayala, N.J.S.A.

2C:12-3( count four); possession of a firearm for an unlawful purpose, N.J.S.A.

2C:39-4(d) (count five); and unlawful possession of a weapon, N.J.S.A. 2C:39-

5(c)(2) (count six).

      In March 1985, defendant was tried before a jury and found guilty on

counts one, three, five, and six, and not guilty on counts two and four. The judge

merged count five into count six, and imposed the following sentences: on count

one, life imprisonment with a twenty-five year parole bar; on count three, ten

years of imprisonment with a five-year parole bar, consecutive to the sentence

on count one; and on count six, ten years imprisonment, with five years of parole

ineligibility, concurrent to the sentences on counts one and three. The judge

filed a judgment of conviction dated April 18, 1985.




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                                        2
      Defendant appealed, and on December 31, 1987, we affirmed defendant's

conviction and sentence. The Supreme Court denied defendant's petition for

certification. State v. Caraballo, 110 N.J. 292 (1988). Defendant then filed a

petition for a writ of habeas corpus in the federal district court and in September

1989, the court dismissed the petition.

      Defendant filed a petition for post-conviction relief (PCR) in the Law

Division, and on November 26, 1990, the court dismissed the petition as time-

barred under Rule 3:22-12. Defendant appealed and we affirmed. State v.

Caraballo, No. A-2203-90 (App. Div. Mar. 11, 1992) (slip op. at 3). In 1993,

defendant filed a second petition for a writ of habeas corpus in the federal district

court, which the court denied.

      On May 30, 1995, defendant filed a second PCR petition in the Law

Division, which the court dismissed on December 1, 1995. Defendant later filed

a third PCR petition and the Law Division denied the petition on October 14,

1998. We affirmed. State v. Caraballo, No. A-4083-98 (App. Div. Oct. 20,

2000). The Supreme Court denied certification. State v. Caraballo, 167 N.J.

631 (2001).

      On November 6, 2000, defendant filed a fourth PCR petition, in which he

claimed that his sentence was illegal because the sentencing judge had allegedly


                                                                             A-0829-17T4
                                          3
erred in his consideration of certain aggravating factors. The Law Division

denied relief, finding that defendant's claim was procedurally barred.       We

affirmed the denial of PCR. State v. Caraballo, No. A-2655-03 (App. Div. June

15, 2005) (slip op. at 4). We found that the PCR court correctly determined that

defendant's claim was time-barred under Rule 3:22-12, and barred by Rule 3:22-

5 because the claim had been previously adjudicated on direct appeal. Id. at 4-

5.

      We also rejected defendant's contention that his sentence violated

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542

U.S. 296 (2004). Caraballo, No. A-2655-03, slip op. at 5-7. We noted that

defendant argued that the sentencing judge violated his right under the Sixth

Amendment to the United States Constitution when the judge imposed the life

sentence. Id. at 5-6.

      We found that defendant's claim failed because there was no "presumptive

sentence" for murder and the imposition of the statutory maximum term "passed

constitutional muster under both Apprendi and Blakely." Id. at 7. We therefore

found no need to address defendant's contention that retroactive application of

Apprendi and Blakely made his life sentence illegal. Id. at 7.




                                                                        A-0829-17T4
                                       4
      Thereafter, defendant filed a motion in the trial court to correct what he

claimed was an illegal sentence.      The court found that the sentence was

authorized by the applicable statute, and the sentencing judge's alleged double-

counting of his prior offenses for sentencing purposes was not a basis for relief

under Rule 3:22-12. Defendant appealed from the trial court's order denying his

motion and we affirmed, noting that none of defendant's arguments related to

the legality of his sentence. State v. Caraballo, No. A-0529-10 (App. Div.

March 7, 2012) (slip op. at 3).

      On March 7, 2017, defendant filed another motion to correct an allegedly

illegal sentence. The trial court entered an order dated July 11, 2017, denying

the motion. In an accompanying letter opinion, the court noted that defendant

claimed his sentence was illegal because the sentencing judge had imposed the

life sentence without additional fact-finding by a jury.

      In support of that claim, defendant cited Apprendi, and the later decisions

in Blakely and United States v. Booker, 543 U.S. 220 (2005), which applied

Apprendi. The trial court found that defendant's reliance upon these decisions

was misplaced because Apprendi was decided fifteen years after he was

sentenced, and that the principles enunciated in Apprendi and the subsequent




                                                                         A-0829-17T4
                                        5
cases did not apply retroactively to invalidate defendant's sentence. This appeal

followed.

      On appeal, defendant argues:

            POINT 1
            [A.] DEFENDANT SHOULD BE RESENTENCED
            OR A NEW TRIAL ORDERED IN LIGHT OF THE
            BLAKELY V. WASHINGTON DECISION AS TO
            PREVENT A MANIFEST INJUSTICE CREATED BY
            SENTENCING THE DEFENDANT TO TWENTY-
            FIVE (25) YEARS TO LIFE AS A PERSISTENT
            VIOLENT FELON.

            B. THE RECENT . . . DECISION [IN CUNNINGHAM
            v. CALIFORNIA, 549 U.S. 270 (2007)] MAKES IT
            UNCONSTITUTIONAL TO SENTENCE ME TO A
            SENTENCE ABOVE THE EXTENDED TERM
            USING "PROTECTION OF THE PUBLIC" AS AN
            ENHANCEMENT.

            POINT 2
            DEFENDANT'S SENTENCE IS EXCESSIVE[.]

            A. The Imposition of a Presumptive Base Term With
            The Maximum Term of Parole Ineligibility Was An
            Abuse of Discretion[.]

            B. The Trial Court Abused Its Discretion In Imposing
            A Consecutive Sentence For The Aggravated Assault
            finding.

      We note initially that although it was not the basis for the trial court's

order, defendant's claim based on Apprendi and Blakely is barred by Rule 3:22-

5. The rule states that:

                                                                         A-0829-17T4
                                       6
            [a] prior adjudication upon the merits of any ground for
            relief is conclusive whether made in the proceedings
            resulting in the conviction or in any post-conviction
            proceeding brought pursuant to this rule or prior to the
            adoption thereof, or in any appeal taken from such
            proceedings.

            [Ibid.]

      As we noted previously, in the appeal from the denial of his fourth PCR

petition, defendant argued that his life sentence violated Apprendi and Blakely,

and those decisions should be applied retroactively to invalidate his life

sentence. We held that Apprendi and Blakely did not apply to defendant's

sentence. Caraballo, No. A-2655-03, at 6-7. Therefore, Rule 3:22-5 precludes

defendant from re-litigating that issue in this appeal.

      Moreover, even if the procedural bar did not apply, defendant's argument

fails. In Cunningham v. United States, the Court noted the Sixth Amendment

"proscribes a sentencing scheme that allows a judge to impose a sentence above

the statutory maximum based on a fact, other than a prior conviction, not found

by a jury or admitted by the defendant." 549 U.S. 270, 274-75 (2007) (citing

Apprendi, 530 U.S. at 490, Blakely, 542 U.S. at 304-05, and Booker, 543 U.S.

at 244). The Court in Cunningham observed that the "statutory maximum"

means "the maximum [a judge] may impose without any additional findings" (as



                                                                        A-0829-17T4
                                        7
opposed to "the maximum sentence a judge may impose after finding additional

facts"). Ibid. (emphasis in original) (citing Blakely, 542 U.S. at 303-04).

      As we explained in our opinion in the appeal from the denial of

defendant's fourth PCR petition, there was no presumptive sentence for murder

at the time defendant committed that offense. Caraballo, No. A-2655-03, slip

op. at 6. Moreover, the criminal code then in effect allowed the court to impose

a life sentence for murder under N.J.S.A. 2C:43-7(a)(1) without separate proof

of the enhancement criteria in N.J.S.A. 2C:44-3.        Id. at 6 (citing State v.

Maguire, 84 N.J. 508, 527 (1980)). We therefore held that defendant's life

sentence passed constitutional muster under Apprendi and Blakely. Id. at 6-7.

      Furthermore, Apprendi and Blakely established a new rule of law, and in

State v. Natale, 184 N.J. 458, 494 (2005), the Court held that the rule would only

be applied to cases "in the pipeline," that is, cases that were on direct appeal as

of the date Natale was decided, August 2, 2005. Defendant's direct appeal was

decided by this court on December 31, 1987, and the Supreme Court denied

certification on March 8, 1988.      Thus, defendant's appeal was not "in the

pipeline" when Natale was decided. Thus, defendant's reliance on Apprendi and

Blakely is misplaced.




                                                                           A-0829-17T4
                                        8
      Defendant also argues that his sentence violates the provisions prohibiting

ex post facto laws under the New Jersey and United States Constitutions. He

quotes Bouie v. City of Columbia, 378 U.S. 347, 354 (1967), and Rogers v.

Tennessee, 532 U.S. 451, 456-57 (2001), to support his argument that judicial

enlargement of a maximum statutory sentence can violate the ex post facto

clauses when such judicial action is "unexpected and indefensible" under the

law in effect before the conduct at issue.

      We note that in Bouie, the Court stated that "[i]f a judicial construction of

a criminal statute is 'unexpected and indefensible by reference to the law which

had been expressed prior to the conduct in issue,' [the construction] must not be

given retroactive effect." This principle is, however, "restricted to its traditional

due process roots" of fair warning, and it is not based on the ex post facto clause.

Rogers, 532 U.S. at 459-60.

      Here,    defendant's   life   sentence      was   neither   "unexpected"    nor

"indefensible."   It was expressly permitted by the statute in effect before

defendant committed the offense. Thus, defendant's claim that his life sentence

violates ex post facto principles is meritless.

      Defendant further argues that his sentence is illegal because the

sentencing judge relied in part on his two prior convictions in New York when


                                                                             A-0829-17T4
                                         9
the judge sentenced him to life imprisonment pursuant to N.J.S.A. 2C:43-

7(a)(1). He contends the sentencing judge erred by relying upon the New York

convictions because neither offense meets the definition of "prior conviction in

another jurisdiction" under N.J.S.A. 2C:44-4.

      The argument is barred under Rule 3:22-5, because it was raised and

adjudicated in prior proceedings. In his appeal from the denial of his fourth

PCR petition, defendant argued that the sentencing judge's consideration of his

New York convictions rendered his sentence illegal. Caraballo, No. A-2655-03,

slip op. at 4. We rejected that argument. Id. at 5. We also noted that in

defendant's direct appeal, we had addressed the trial court's consideration of the

aggravating factors and found that the sentence was proper. Ibid.

      Even if this claim was not barred by Rule 3:22-5, defendant's argument

lacks merit. As noted, imposition of a life sentence for murder under N.J.S.A.

2C:43-7(a)(1) does not require separate proof of the enhancement criteria in

N.J.S.A. 2C:44-3. Maguire, 84 N.J. at 525-26. In sentencing defendant, the

judge found several aggravating factors, including "[t]he extent of the

defendant's prior criminal record and the seriousness of the offenses of which

he has been convicted" under N.J.S.A. 2C:44-1(a)(6). In making that finding,




                                                                          A-0829-17T4
                                       10
the judge properly considered defendant's entire criminal record, including the

New York convictions for attempted robbery and grand larceny.

      In addition, defendant contends that his sentence is excessive. Defendant

argues that the sentencing judge erred by purportedly deviating from the

presumptive base term and imposing a life sentence for murder.         He also

contends that the judge abused his discretion by imposing a consecutive

sentence for aggravated assault.

      It is well established, however, that a claim that a sentence is excessive

rather than illegal is not an appropriate ground for PCR. State v. Flores, 228

N.J. Super. 586, 592 (App. Div. 1988) (citing State v. Clark, 65 N.J. 426, 437

(1974)). Furthermore, a claim challenging a consecutive sentence that does not

relate to the legality of the sentence is not cognizable under PCR. State v.

Acevedo, 205 N.J. 40, 47 (2011).

      As noted, defendant argues that the sentencing judge erred by imposing

the life sentence for murder under N.J.S.A. 2C:43-7(a)(1) and by imposing a

consecutive sentence for aggravated assault. The claims do not, however, relate

to sentence illegality.   Therefore, defendant's sentencing arguments are not

cognizable on PCR.        Furthermore, even if the sentencing claims were




                                                                        A-0829-17T4
                                      11
cognizable, defendant's arguments regarding the sentences lack sufficient merit

to warrant discussion. R. 2:11-3(e)(2).

      Affirmed.




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                                     12
