NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JESSE TIMMENDEQUAS, Defendant-Appellant. Submitted May 16, 2011 Decided June 14, 2011 PER CURIAM Before Judges A. A. Rodríguez, Grall and C. L. Miniman. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 94-10-1088. Yvonne Smith Segars, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). Defendant Jesse Timmendequas was convicted by a jury in 1997 of the kidnapping and murder of seven-year-old Megan Kanka.
Judge Andrew J. Smithson imposed a death sentence, but if the Supreme Court vacated the death sentence on review, defendant was to serve life with no parole for murder and a consecutive life term with a twenty-five-year parole disqualifier for firstdegree kidnapping. The New Jersey Supreme Court affirmed both the conviction and the sentence. State v. Timmendequas, 161 N.J. 515 (1999) (affirming conviction and sentence), 168 N.J. 20 (proportionality review), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Defendant filed a petition for post-conviction relief (PCR) on October 3, 2001, two days after the United States Supreme Court denied certiorari for his direct appeal. He challenged the legality of his sentence and alleged numerous instances of ineffective assistance of counsel for failure to challenge trial-court rulings. After the repeal of the death penalty, the Governor commuted defendant's death sentence to life without parole. Therefore, all PCR claims relating to defendant's death sentence were rendered moot. However, on February 8, 2008, the PCR judge dismissed defendant's entire petition as moot because defendant's death sentence had been commuted. On appeal, defendant contends that: TRIAL DEFENSE COUNSEL WERE INEFFECTIVE, UNDER STANDARDS SET BY THE FEDERAL AND STATE 2
CONSTITUTIONS, IN THAT THEY DID NOT OFFER PROOF OF DEFENDANT'S MENTAL RETARDATION DURING EITHER THE JACKSON-DENNO HEARING OR THE GUILT PHASE OF TRIAL. THIS ISSUE IS NOT MOOTED BY THE COMMUTATION OF THE DEFENDANT'S DEATH SENTENCE, AND THE DEFENDANT'S PETITION SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND. TRIAL DEFENSE COUNSEL WERE INEFFECTIVE, UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS, IN NOT OBJECTING TO PROSECUTORIAL MISCONDUCT DURING THE GUILT PHASE OF THE TRIAL, AS THEIR FAILURE TO OBJECT CAUSED THE NEW JERSEY SUPREME COURT TO EVALUATE THAT MISCONDUCT UNDER A "PLAIN ERROR" STANDARD. THIS ISSUE IS NOT MOOTED BY THE COMMUTATION OF THE DEFENDANT'S DEATH SENTENCE, AND THE PETITION SHOULD NOT HAVE BEEN DISMISSED ON THAT GROUND. THIS COURT SHOULD RECONSIDER ITS DENIAL OF DEFENDANT'S MOTIONS TO INTERVIEW JURORS AND TO INSPECT THE PROSECUTOR'S FILE, AND THE POINT IS NOT MOOTED BY THE COMMUTATION OF THE DEFENDANT'S DEATH SENTENCE. THE CUMULATIVE EFFECT OF THE ERRORS NOTED IN DEFENDANT'S PETITIONS REQUIRES REVERSAL OF DEFENDANT'S CONVICTION, AND THE POINT IS NOT MOOTED BY THE COMMUTATION OF DEFENDANT'S DEATH SENTENCE. TRIAL DEFENSE COUNSEL WERE INEFFECTIVE, UNDER STANDARDS SET BY THE FEDERAL AND STATE CONSTITUTIONS, IN WITHDRAWING THEIR MOTION TO HAVE THE VICTIM AND HER PARENTS IDENTIFIED BY ASSUMED NAMES DURING THE TRIAL, AND THE ISSUE IS NOT MOOTED BY THE COMMUTATION OF THE DEFENDANT'S DEATH SENTENCE. THE PCR COURT ERRED IN DECLINING TO ORDER THAT THE DEFENDANT BE TRANSPORTED FOR NEUROLOGICAL EXAMINATIONS, AND THE POINT IS 3
NOT MOOTED BY THE COMMUTATION OF THE DEFENDANT'S DEATH SENTENCE. We agree with defendant that these contentions were not rendered moot by the abolition of the death penalty. Therefore, we remand to the Law Division for a decision on the merits of these issues. There is one contention that presents a legal issue which we review de novo. Therefore, for the sake of judicial economy, we address that issue. Defendant contends: UNDER BLAKELY V. WASHINGTON, DEFENDANT'S SENTENCE TO PRISON MUST BE VACATED, AND THE POINT IS NOT MOOTED BY THE COMMUTATION OF THE DEFENDANT'S DEATH SENTENCE. Defendant argues that his sentence of life imprisonment for first-degree kidnapping violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), as applied in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Specifically, he argues that the judge erred by relying on facts that the jury did not find in sentencing him to a term for kidnapping greater than the mid-point of the sentencing range. We reject this argument. Judge Smithson sentenced defendant to life imprisonment with a twenty-five year period of parole ineligibility for kidnapping. N.J.S.A. 2C:13-1(c)(2) provides that "the term of imprisonment imposed" for first-degree kidnapping "shall be 4
either a term of 25 years during which the actor shall not be eligible for parole, or a specific term between 25 years and life imprisonment, of which the actor shall serve 25 years before being eligible for parole." The PCR judge did not reach this issue. However, the legal issue before us is whether the Blakely rule applies retroactively to a sentence entered and affirmed three years before the rule was announced. Our standard of appellate review is de novo. State v. Hupka, 203 N.J. 222, 231 (2010). In Blakely, the United States Supreme Court held that a judge may only impose a sentence "on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S. at 303, 124 S. Ct. at 2537, 159 L. Ed. 2d at 413. In State v. Natale, 184 N.J. 458, 484 (2005), the New Jersey Supreme Court applied Blakely and found that New Jersey's "system of presumptive term sentencing violate[d] the Sixth Amendment's right to trial by jury." After this holding, the Court addressed the retroactive applicability of the new rule. Id. at 492-96; see also Danforth v. Minnesota, 552 U.S. 264, 282, 128 S. Ct. 1029, 1042, 169 L. Ed. 2d 859, 872 (2008) (permitting states to give greater retroactive effect to new rules of constitutional law). The Court determined that Blakely would be given pipeline 5
retroactivity, meaning that it would apply "to defendants with cases on direct appeal as of the date of th[e] decision and to those defendants who raised Blakely claims at trial or on direct appeal." Natale, supra, 184 N.J. at 494. Here, defendant's direct appeal became final when the United States Supreme Court denied his petition for certiorari in 2001. See, e.g., State v. Dock, 205 N.J. 237, 259 (2011) (appeal was final for retroactivity analysis when the defendant's petition for certification was denied by the New Jersey Supreme Court). Natale was decided on August 2, 2005. 184 N.J. at 458. Thus, defendant is not entitled to invoke the Natale holding. Moreover, defendant did not raise a Blakely argument during trial or in his direct appeal. Accordingly, we affirm the legality of the sentence imposed on the kidnapping conviction and reverse the denial of relief in all other issues raised in PCR, and remand those issues to the Law Division, Mercer County for consideration on the merits. 6