Opinion
DOCKET NO. A-3990-13T4
06-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN MCCRAY, Defendant-Appellant.
Kevin McCray, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-12-4087. Kevin McCray, appellant pro se. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kevin McCray appeals from the December 20, 2013 Law Division order, which denied his motion to correct an illegal sentence. For the following reasons, we affirm.
Following a jury trial, defendant was convicted in 1995 of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:15-2; first-degree armed robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3(a)(3); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was acquitted of first-degree murder, but convicted of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a).
The charges against defendant stemmed from the robbery and murder of a pizza delivery man. Defendant was not the shooter, but he admitted that he: knew of the plan to rob the pizza delivery man; was present at the scene when the shooting occurred; directed the delivery man to the shooter fully aware that the shooter had a handgun and was "souped up" to shoot the delivery man; and saw the shooter shoot the delivery man. The trial judge sentenced defendant to an aggregate term of life imprisonment with a thirty-year period of parole ineligibility.
Defendant appealed his conviction and sentence. We affirmed, and our Supreme Court denied certification. State v. McCray, No. A-4899-95 (App. Div. Oct. 15), certif. denied, 152 N.J. 193 (1997). As to defendant's sentence, we found as follows:
A life sentence for murder is an ordinary sentence. The Supreme Court has concluded that a life sentence for murder can be imposed on consideration of the aggravating
factors set out in N.J.S.A. 2C:44-1(a). The trial court considered the aggravating factors and found them in preponderance. It complied with the sentencing guidelines of the Criminal Code even though it mistakenly concluded there was a 50-year presumptive term. The sentence imposed is well within the discretion of the trial court as that discretion is explicated by the Criminal Code and case law and it does not shock our judicial conscience.
[McCray, supra, No. A-4899-95, slip op. at 9-10 (citations omitted).]
Two years later, defendant filed a motion for post-conviction relief (PCR), grounded, in part, on the ineffective assistance of trial counsel. The trial judge denied the petition, and we affirmed. State v. McCray, No. A-6777-00 (App. Div. Jan. 28, 2003). The Court granted defendant's petition for certification and summarily remanded to the trial court to permit supplementation of the record and reconsideration of whether defendant was entitled to an evidentiary hearing. State v. McCray, 177 N.J. 218 (2003). On remand, the trial judge denied the petition. We affirmed, and the Court denied certification. State v. McCray, No. A-5150-09 (App. Div. July 12), certif. denied, 209 N.J. 97 (2011).
On November 12, 2013, defendant filed a motion to correct an illegal sentence pursuant to Rule 3:21-10(b)(5), contending that his sentence was illegal because the statute under which he was convicted, N.J.S.A. 2C:11-3(b), was ambiguous. N.J.S.A. 2C:11-3(b) provides as follows in pertinent part:
Defendant incorrectly cited to Rule 3:22-6. --------
a person convicted of murder shall be sentenced . . . by the court to a term of [thirty] years, during which the person shall not be eligible for parole, or be sentenced to a specific term of years which shall be between [thirty] years and life imprisonment of which the person shall serve [thirty] years before being eligible for parole.Defendant argued that construing "life" with thirty years before parole or thirty years without parole is subject to two interpretations. Thus, the statute should be construed in his favor to impose a thirty-year sentence without parole. Defendant also argued the statute was unconstitutional because other defendants convicted of murder received disparate sentences.
In a written opinion, the motion judge denied the motion, holding the statute was not ambiguous. The judge found that the plain meaning of the language "shall not be eligible for parole" and "before being eligible for parole" clearly indicated that a person convicted of murder shall not be eligible for parole until at least thirty years of the given sentence has been served.
Citing State v. Marshall, 130 N.J. 109 (1992), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), the judge also found that absent evidence of impermissible systemic bias, the sentence was not unconstitutionally disparate simply because sentencing for murder varied from case to case. The judge concluded as follows:
Here, [defendant was] properly sentenced to an aggregate term of life imprisonment with thirty years of parole ineligibility. [The] sentence neither exceeds the maximum permitted by statute nor violates the laws of this state, its Constitution, or the Constitution of the United States. Accordingly, [the] sentence fails to implicate any unconstitutional disparity and falls within the proper sentencing guidelines such that it is not an illegal sentence.This appeal followed.
On appeal, defendant reiterates the ambiguity and disparity arguments made to the motion judge. Defendant's arguments rely, in part, on alleged errors by the sentencing judge in imposing the life sentence. However, we addressed defendant's sentence on the merits in his direct appeal and found no error by the trial judge. McCray, supra, No. A-4899-95, slip op. at 9-10. If an issue has been determined on the merits in a prior appeal it cannot be re-litigated in a later appeal of the same case, even if of constitutional dimension. R. 3:22-5; State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971).
In addition, defendant's ambiguity and disparity arguments could and should have been raised on direct appeal. The Rules bar the assertion of any "ground for relief" not previously raised in an appeal, Rule 3:22-4, or that could have been raised on appeal but was not. State v. Afandor, 151 N.J. 41, 50 (1997). In any event, there is no ambiguity in N.J.S.A. 2C:11-3(b). The statute permits the court to sentence a defendant to a term of thirty years without parole or between thirty years and life imprisonment with thirty years of parole ineligibility. We upheld the court's discretion to impose the latter sentence.
Nor is defendant's sentence illegal. We recognize that neither state nor federal equal protection guarantees permit a "person . . . [to] be subject to a greater or different punishment for an offense than that to which others of the same class are subjected." State v. Smith, 58 N.J. 202, 206 (1971). However, "an illegal sentence is one that 'exceeds the maximum penalty provided in the Code for a particular offense' or a sentence 'not imposed in accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)). The sentence here did not exceed the maximum penalty provided in the Code for the offense. The sentence was statutorily permitted and imposed in accordance with the law.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION