                                NOT FOR PUBLICATION WITHOUT THE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-0376-18T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

JAMES A. HEMENWAY, a/k/a
JAY HEMENWAY

     Defendant-Appellant.
_________________________

                   Argued October 3, 2019 – Decided October 21, 2019

                   Before Judges Fuentes and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Monmouth County, Indictment No. 15-09-
                   1722.

                   Edward C. Bertucio argued the cause for appellant
                   (Kalavruzos, Mumola Hartman & Lento, LLC,
                   attorneys; Edward C. Bertucio and William Les
                   Hartman, of counsel and on the briefs; Jessica A.
                   Wilson, on the briefs).

                   Monica Lucinda do Outeiro, Assistant Prosecutor,
                   argued the cause for respondent (Christopher J.
                   Gramiccioni, Monmouth County Prosecutor, attorney;
            Monica Lucinda do Outeiro, of counsel and on the
            brief).

PER CURIAM

      Defendant James Hemenway appeals from the order of the Criminal Part

denying his post-conviction relief (PCR) petition. Defendant argues the PCR

judge erred in denying his PCR petition because the sentencing court imposed

an excessive sentence that was disproportionate to the sentences of his co -

defendants and failed to properly calculate defendant's jail time credits. After

reviewing the record developed by the parties, we affirm.

      A Monmouth County grand jury returned an indictment against defendant

charging him with second degree eluding, N.J.S.A. 2C:29-2b; second degree

aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); fourth degree

tampering with evidence, N.J.S.A. 2C:28-6(1); third degree possession of a

controlled dangerous substance, N.J.S.A. 2C:35-10a(1); third degree possession

of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35 -

5b(3); and third degree resisting arrest, N.J.S.A. 2C:29-2a(3).

      A separate Monmouth County grand jury returned another indictment

against defendant charging him with second degree conspiracy, N.J.S.A. 2C:5-

2, N.J.S.A. 2C:35-5b(1), and/or N.J.S.A. 2C:35-5b(2); first degree possession

of a controlled substance dangerous substance with an intent to distribute,

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                                       2
N.J.S.A. 2C:35-5b(1), N.J.S.A. 2C:35-5c, and N.J.S.A. 2C:2-6; first degree

distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(1), N.J.S.A.

2C:35-5c, and N.J.S.A. 2C:2-6; third degree possession of controlled dangerous

substance, N.J.S.A. 2C:35-10a(1) and N.J.S.A. 2C:2-6; second degree

possession of a controlled dangerous substance with intent to distribute,

N.J.S.A. 2C:35-5b(2), N.J.S.A. 2C:35-5c, and N.J.S.A. 2C:2-6; second degree

distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(2), N.J.S.A.

2C:35c, and N.J.S.A. 2C:2-6; first degree maintaining or operating a controlled

dangerous substance production facility, N.J.S.A. 2C:35-4; third degree

possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); first

degree possession of a controlled dangerous substance with intent to distribute,

N.J.S.A. 2C:35-5b(1); second degree possession of a controlled dangerous

substance with intent to distribute while on or within 500 feet of a public park,

N.J.S.A. 2C:35-7.1; fourth degree possession of a controlled dangerous

substance contrary to N.J.S.A. 2C:35-10a(3); third degree possession of a

controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(11);

and third degree possession of a controlled dangerous substance with intent to

distribute, N.J.S.A. 2C:35-5b(9)(b).




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                                       3
      Defendant thereafter entered into a negotiated agreement with the State

through which he pled guilty to second degree eluding, N.J.S.A. 2C:29-2b, and

first degree maintenance or operation of a controlled dangerous substance

production facility, N.J.S.A. 2C:35-4. The State agreed to dismiss the remaining

charges and recommend that the court sentence defendant to a term of seven

years for second degree eluding to run concurrently to a term of sixteen years,

with five and a half years of parole ineligibility for first degree maintenance or

operation of a controlled dangerous substance production facility.          These

sentences were to run consecutively to a sentence defendant was serving at the

time in Middlesex County.

      On September 9, 2016, Judge David F. Bauman sentenced defendant in

accordance with the plea agreement. As reflected in the Judgment of Conviction

dated September 20, 2016, Judge Bauman awarded 343 days of gap-time,

thereby expressly rejecting defendant's argument that this time should be viewed

as jail time credit under Rule 3:21-8. Defendant appealed the sentence through

the summary procedural process codified in Rule 2:9-11. In these proceedings,

defendant's appellate counsel urged this court to remand the matter for

resentencing, arguing the sentence was excessive and that the trial judge failed

to properly calculate jail time credit. This court rejected defendant's arguments


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                                        4
and affirmed the sentence imposed by the trial court. State v. James Hemenway,

A-0306-16 (App. Div. December 14, 2016).

      On March 13, 2018, defendant filed this PCR petition again challenging:

(1) the jail time credit he received under Rule 3:21-8; and (2) the length of the

sentence imposed by the court. The attorney who represented defendant before

the Criminal Part in this PCR petition is the same attorney who represented

defendant before this court in the summary appellate proceedings hel d pursuant

to Rule 2:9-11.     The arguments raised by defendant in the PCR petition

characterized the sentence as illegal based on being allegedly disproportionate

to the sentences imposed on his codefendants.

      In an order dated August 24, 2019, Judge Joseph Oxley, J.S.C. denied

defendant's PCR petition. In a memorandum of opinion attached to the order,

Judge Oxley held that pursuant to Rule 3:22-5, defendant was procedurally

barred from relitigating in a PCR petition the excessiveness of his sentence and

the jail time credit awarded by the trial court. Judge Oxley correctly noted that

this court expressly rejected these specific issues on direct appeal. Judge Oxley

also found defendant's disproportionate sentence claim was procedurally barred

under Rule 3:22-4 because this argument could have been raised on direct

appeal.


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                                       5
      Notwithstanding these dispositive procedural impediments, Judge Oxley

thoroughly reviewed the merits of defendant's argument and concluded he was

not entitled to PCR. He noted:

           While it is true that Defendant received a lengthier
           sentence than his co-defendants, a defendant's sentence
           is not excessive simply because a codefendant's
           sentence is lighter. Defendant signed a plea agreement
           which specifically stated that the prosecutor would
           recommend sixteen years at sentencing to run
           concurrently with his other Monmouth County charge,
           and consecutively to his Middlesex County charge.
           Defendant cannot now argue that his sentence is
           disproportionate. Defendant's claim is procedurally
           barred and lacks merit.

      Against these facts, defendant raises the following arguments in this

appeal.

           POINT I

           PETITIONER   IS   ENTITLED    TO  POST-
           CONVICTION    RELIEF   BASED   ON  THE
           EXCESSIVE AND DISPROPORTIONATE ILLEGAL
           SENTENCE HE RECEIVED IN HIS CASE.

                 POINT IA

                 Appellant's Sentence was Excessive.

                 POINT IB

                 Appellant's     Sentence       was     Grossly
                 Disproportionate to the      Sentences of the


                                                                     A-0376-18T3
                                     6
                  Codefendants who were the Target of the
                  Investigation on this Case.

                  POINT IC

                  The Sentencing Court Improperly applied the Jail
                  Credits that should have been awarded to
                  Appellant in this Case.

      Post-conviction relief is designed to be a safeguard to ensure a defendant

is not unjustly convicted. State v. McQuaid, 147 N.J. 464, 482 (1997). Thus, a

PCR petition is our State's analogue to the federal writ of habeas corpus. State

v. Preciose, 129 N.J. 451, 459 (1992). Based on the grounds defendant asserts

for seeking PCR, we review the legal conclusions of the Criminal Part de novo.

State v. Harris, 181 N.J. 391, 420 (2004). Although Judge Oxley addressed and

rejected defendant's claims on the merits, we are satisfied defendant is

procedurally barred from relitigating the length of his sentence and his

entitlement to jail time credits under Rule 3:22-5, which provides that "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."

      Defendant is equally barred from challenging his sentence in a PCR

petition based on allegations that his sentence was disproportionate to the

sentences imposed on his codefendants. Rule 3:22-4(a) clearly states:

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                                       7
            Any ground for relief not raised in a prior proceeding
            under this rule, or in the proceedings resulting in the
            conviction, or in a post-conviction proceeding brought
            and decided prior to the adoption of this rule, 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
            grounds 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 the Constitution of the United
            States or the State of New Jersey.

      As Judge Oxley noted, at least six of his codefendants were sentenced at

the time defendant decided to appeal his sentence. Defendant thus had all of the

information necessary to raise a disproportionality claim on direct appeal.

Finally, there is nothing in this record to indicate that enforcement of this

procedural bar would result in a fundamental injustice.         We thus affirm

substantially for the reasons expressed by Judge Oxley in his well-reasoned

memorandum of opinion denying defendant's PCR petition.

      Affirmed.




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