STATE OF NEW JERSEY VS. ALEXIS DEJESUS(99-01-0102, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0759-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALEXIS DEJESUS, a/k/a
ALEXIS DEJESUS-REYES,
ALEXIS RODRIGUEZ, "FRIJOL,"
Defendant-Appellant.
________________________________
Submitted April 5, 2017 – Decided June 7, 2017
Before Judges Alvarez and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 99-
01-0102.
Alexis DeJesus, appellant pro se.
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Maria I.
Guerrero, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief.
PER CURIAM
Defendant appeals from the September 8, 2015 order denying
his motion to correct an illegal sentence. For the reasons that
follow, we affirm.
After being convicted by a jury for multiple crimes committed
on July 25, 1998, defendant was sentenced to an aggregate term of
sixty-four years subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. More specifically, the base terms imposed
were forty-years for first-degree felony murder, and eight-years
each for three counts of second-degree aggravated assault, with
all terms ordered to be served consecutively.
Defendant filed a direct appeal, and we issued our decision
on February 17, 2004, State v. DeJesus, No. A-5736-00 (App. Div.
February 17, 2004), certif. denied, 180 N.J. 452 (2004). We
affirmed defendant's convictions and addressed the sentencing
arguments he made. In doing so, we reversed the NERA component
of the felony murder sentence because it was not authorized under
the version of NERA in effect at the time of defendant's crime or
sentence. On remand with respect to that issue, the trial court
left in place the forty-year base term originally imposed, and
replaced the eighty-five percent NERA parole disqualifier with a
thirty-year parole disqualifier. At the time of defendant's crime
and sentence, and to the present time, thirty years is the minimum
allowable parole disqualifier for murder. N.J.S.A. 2C:11-3b(1).
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Defendant subsequently filed a petition for post-conviction
relief, asserting ineffective assistance of counsel. The petition
was denied by the trial court. We affirmed in our opinion of
March 9, 2009. State v. DeJesus, No. A-5322-06 (App. Div. March
9, 2009), certif. denied, 199 N.J. 516 (2009).
Six years later, on August 26, 2015, defendant filed a pro
se motion to correct an illegal sentence. Specifically, his motion
challenged as illegal two aspects of the sentence imposed on the
three second-degree aggravated assault counts: (1) that the NERA
component imposed on those sentences was illegal, and (2) that
requiring those sentences to be served consecutively rather than
concurrently was also illegal.
The trial court denied the motion by order of September 8,
2015, accompanied by a written statement of reasons. The judge
noted that defendant had raised both of those issues on direct
appeal and they were both rejected by this court in our February
17, 2004 decision. The judge therefore concluded that defendant
was barred from re-litigating them more than a decade after they
had been resolved on appeal.
In the present appeal, defendant presents these arguments:
POINT I: THE TRIAL COURT VIOLATED THE EX POST
FACTO CLAUSE BY ILLEGALLY IMPOSING THE NO
EARLY RELEASE ACT TO COUNTS 2, 3, AND 4
(Second-Degree Aggravated Assault Charges) AS
THE DEFENDANT WAS SENTENCED PRIOR TO THE 2001
3 A-0759-15T2
AMENDMENTS TO NERA, THEREFORE, DEFENDANT'S
SENTENCE AS TO THOSE COUNTS ARE ILLEGAL AND
MUST BE CORRECTED. (U.S. Const., Art. I, 10,
cl. 1; N.J. Const. (1947), Art. IV, sec. VII,
cl. 3) (Partially Raised Below).
POINT II: DEFENDANT WAS ENTITLED TO THE
PRESUMPTIVE TERMS FOR SECOND-DEGREE
AGGRAVATED ASSAULT COUNTS. (Raised Below).
POINT III: THE 40-YEAR SENTENCE IMPOSED ON
COUNT SEVEN (Felony Murder) IS ABOVE THE
MINIMUM 30-YEAR SENTENCE AUTHORIZED BY
N.J.S.A. 2C:11-3b(1), THEREFORE MUST BE
CORRECTED. (Not Raised Below).
These arguments lack sufficient merit to warrant discussion in a
written opinion. See R. 2:11-3(e)(2). We provide these brief
comments.
The argument raised in Point I, that NERA should not have
been applied to the three aggravated assault counts, was raised
on direct appeal, and we rejected it. See DeJesus, supra, No. A-
5736-00 (slip op. at 26). We explained in detail the reasons for
rejecting this argument and there is no basis upon which to revisit
it now.
Likewise, although not referenced in the Point I heading, in
the body of his argument defendant argues that he should have been
given concurrent rather than consecutive sentences on the three
aggravated assault counts. In our prior opinion on direct appeal,
we also considered and rejected that argument, explaining our
reasons in detail. DeJesus, supra, No. A-5736-00 (slip op. at 27-
4 A-0759-15T2
30). There is no basis upon which we should now address this
matter, which we adjudicated more than a decade ago.
In Points II and III, defendant argues that the base terms
imposed were excessive. He did not raise these arguments on direct
appeal or in his post-conviction relief proceeding. Further,
these issues were not raised in the motion which is the subject
of this appeal, and accordingly are not cognizable on appeal.
State v. Robinson, 200 N.J. 1, 20-22 (2009). Finally, the
arguments are lacking in substantive merit. The sentencing judge
articulated, with adequate support in the record, the
applicability of two aggravating factors and the non-applicability
of any mitigating factors. The preponderance of aggravating
factors justified the base terms imposed.
Affirmed.
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