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 J udges Fuentes and Mayer

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

- 09

- 1722.
E dward 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 brief s ; Jessica A. Wilson, on the brief s ). Monica Lucinda do Outeiro, Assistant Prosecutor, argued the cause for respondent ( Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney ;

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

- 3.2 A

- 0376

- 18T3 Monica Lucinda do Outeiro, o f 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 ret urned 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. 2 C :28

- 6(1); third degree possessi on 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 Monmout h Count y 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,3 A

- 0376

- 18T3

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 substa nce, 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 subst ance, 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. 2 C:35

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

- 10a(3); thir d 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 control led dangerous substance with intent to distribute, N.J.S.A. 2C:35

- 5b(9)(b).4 A

- 0376

- 18T3

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 sen tence defendant to a term of seven years for second degree e luding 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
sentence s were to run consecutively to a sen tence 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, J udge Bauman awarde d 343 days of gap - time , thereby expressly rejecting defendant 's argument that th is 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 argumen t s5 A

- 0376

- 18T3

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 Ox l e y, J.S.C. denied defendant's PCR petition

. In a memorandum of opinion attached to the order, Judge Ox l e y 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 w as procedurally barred under R ule 3:22

- 4 because this argument could have been raised on direct appeal

.6 A

- 0376

- 18T3

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:

Whi le it is true that Defendant received a lengthier sentence than his co

- defendants, a defendant's sentence is not excessive simply because a co defendant'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 bar red and lacks merit. Against these facts, d efendant 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 I A Appellant's Sentence was Excessive.
POINT I B Appellant's Sentence was Grossly Disproportionate to the Sentences of the7 A

- 0376

- 18T3 C odefendants who were the Target of the Investigation on this Case.
POINT I C The Sentencing Court Improperly applied the Jail Credits that should have been a warded to Appellant in this Case.
Post

- conviction relief is designed to be a safeguard to ensure a defendant is n ot unjustly convicted. State v. McQua i d , 147 N.J. 464 , 482 (1997). Thus, a PCR petition is our S tate '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, w e review th e 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 cred its 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 chall enging 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:8 A

- 0376

- 18T3 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 co unsel, 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 State s or the State of New Jersey.
As Judge Oxley noted, a t least six of his codefendant s were sentenced at the tim e defendant decided to appeal his sentence

. Defendant thus had all of the information necessary to raise a disproportionality claim on d irect appeal. Finally, t here 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

- reason ed memorandum of opinion denying defendant's PCR petition. Affirmed.