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; 

NOT FOR PUBLICATION WITHOUT THE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.
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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 codefendants 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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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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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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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 held 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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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 POSTCONVICTION 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 
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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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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.