Opinion
DOCKET NO. A-5346-13T1
01-22-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN JACKSON, Defendant-Appellant.
Kevin Jackson, appellant pro se. Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Haas. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 85-10-0744. Kevin Jackson, appellant pro se. Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Kevin Jackson appeals from a June 24, 2014 order, which denied his petition for post-conviction relief (PCR) grounded on an allegedly illegal sentence. We affirm.
The parties are fully familiar with the lengthy procedural history of this matter. Therefore, we will only briefly summarize the most pertinent events here.
On September 19, 1986, defendant pled guilty to first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2). State v. Jackson, 118 N.J. 484, 485 (1990). The jury sentenced defendant to death. Ibid. On April 18, 1990, our Supreme Court vacated the sentence of death and remanded the matter to the Law Division for a retrial. Id. at 492-93.
On remand, a jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(6) (count two); and third-degree theft, N.J.S.A. 2C:20-3(a) (count three). On October 9, 1992, the trial judge sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility on count one, "to run consecutive to sentences imposed on" counts two and three. On count two, the judge sentenced defendant to a ten-year term with a five-year period of parole ineligibility, and to a concurrent five-year term on count three. Thus, defendant's aggregate term was life plus ten, with a thirty-five-year period of parole ineligibility. The October 9, 1992 judgment of conviction (JOC) stated that defendant had received 2592 days of jail credit.
After we upheld defendant's convictions and sentence on direct appeal, defendant filed two unsuccessful petitions for PCR. State v. Jackson, No. A-6746-02 (App. Div. June 5, 2006) (slip op. at 1-2), certif. denied, 188 N.J. 490 (2006).
On January 27, 2014, defendant filed a motion to correct his jail credits. On May 15, 2014, defendant filed an "Addendum Letter Petition" asserting that his sentence was illegal.
On June 3, 2014, the trial judge addressed the issue of jail credits. The judge determined that the time defendant spent in prison prior to our Supreme Court's April 18, 1990 decision vacating his death sentence should have been treated as prior service credit rather than jail credit. Thus, the judge issued an amended JOC stating that defendant was entitled to 1167 days of prior service credit and 1425 days of jail credit.
On June 12, 2014, the judge forwarded the amended JOC to defendant with a letter explaining the change in the jail credits.
Thus, the 2592 days of credit remained the same as in the October 9, 1992 JOC. --------
On June 24, 2014, the judge found that, because defendant's aggregate sentence was within the statutory range, the sentence was not illegal. The judge then dismissed defendant's remaining claims that the sentence was excessive because these claims were not cognizable on a petition for PCR. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
[DEFENDANT] SUBMIT[S] THAT HAPPENSTANCE IS IMMATERIAL FOR [THE STATE] NOT CORRECTLY CREDITING THE LEGAL, AS[-]MANDATED JAIL CREDITS PURSUANT TO R[ULE] 3[:]21-8.
POINT II
[DEFENDANT'S] JAIL CREDITS MUST BE CREDITED LEGALLY TO [HIS] CONSECUTIVE SENTENCES IN THE INDICTMENT AT BAR.
A. [DEFENDANT'S] COMMUTATION AND WORK CREDITS MUST BE CREDITED TO THE CONSECUTIVE SENTENCE IN THE INDICTMENT AT BAR.
B. THE LEAP YEARS DEPRIVE [DEFENDANT] HIS LEGAL[LY] DUE CREDITS BECAUSE IT[']S 364 DAYS VERSES [SIC] A NORMAL YEAR BEING 365 DAYS, THE STATUTE IS VOID IN ADDRESSING THIS MATTER AND IT[']S ILLEGAL.
POINT III
PURSUANT TO THE PRINCIPLES OF THE COMMON LAW AND N.J. CONST. 1947, ART. VI, § 1, PARA. 1; ART. XI, § 1, PARA. 3 THE CURRENT ILLEGAL SENTENCE OF LIFE MUST BE VACATED/CORRECTED IMMEDIATELY.
A. THE HOLDING OF STATE V. THOMAS, INFRA, AND STATE V. PIERCE, INFRA, WAS NOT COMPLIED WITH UPON [DEFENDANT'S] SENTENCE, NONETHELESS, THERE WAS STILL AN ABUSED [SIC] OF DISCRETION, TO IMPOSED [SIC] AN ILLEGAL EXTENDED/ENHANCED TERM THAT [DEFENDANT] WAS NOT ELIGIBLE FOR, LEGALLY.
POINT IV
[DEFENDANT'S] INDICTMENT DID NOT CONVEY ANY PARTICULAR AGGRAVATIONS OR SPECIAL CIRCUMSTANCES, AS TO WHY/HOW [DEFENDANT] WAS/IS A [SIC] MANDATORY LIFE SENTENCE ELIGIBLE.
A. [DEFENDANT'S] UNCONSTITUTIONAL ENHANCED SENTENCE TO LIFE INSTEAD OF A 30/30 YEARS PAROLE BAR, WAS/IS AS WELL ILLEGAL GIVEN THE FACT [THAT THE STATE] TREATED THE "PRINCIPLE BASIS" OF A FACT, TO INCREAS[]ING THE MAXIMUM TERM OF IMPRISONMENT DIFFERENTLY THAT [SIC] THE FACTS CONSTITUTING THE BASE OFFENSE, WAS/IS ILLEGAL [SIC].
POINT V
[DEFENDANT] SUBMIT[S] THAT [THE STATE] MUST CONSTRUE A STATUTE FOR ITS PLAIN MEANING, AS UNDER THE EJUSDEM GENERIS RULE OF STATUTORY INTERPRETATION.
POINT VI
THE FUNDAMENTAL FAIRNESS DOCTRINE MANDATE[S] [DEFENDANT] SHOULD HAVE BEEN GIVEN SOME TYPE OF NOTICE THAT HE'S FACING A[N] EXTENDED/ENHANCED TERM OF IMPRISONMENT. YET, NEVER WAS GIVEN EVEN THUS DATE [SIC].
POINT VII
[DEFENDANT] SUBMIT[S] THAT THE EXTENDED TERM IMPOSED IN THE CASE AT BAR THAT IMPOSED LIFE IS ILLEGAL, CONTRARY TO MAY OR MUST BE IMPOSED, PURSUANT TO N.J.S.A. 2C[:]43-6; N.J.S.A. 2C[:]43-7 AND BASICALLY, BEING AN AUTOMATIC LIFE SENTENCE WITH 30 YEARS MANDATORY PAROLE INELIGIBILITY, VERSES [SIC] IMPOSING A 30/30 YEAR SENTENCE PAROLE INELIGIBILITY.
A. [DEFENDANT] SENTENCE [SIC] TO ORDINARY TERMS AND [SIC] NOT ELIGIBLE FOR ANY EXTENDED/ENHANCED TERM, BECAUSE THE LACK OF ANY PRIORS THAT TRIGGERS [DEFENDANT] ELIGIBLE IN THE FIRST INSTANT [SIC] AND/OR THE LACK OF NOTICE AND HEARING, IS A GROSS ILLEGAL IMPOSED ENHANCED/EXTENDED TERM OF A LIFE SENTENCE [SIC].
B. N.J. CITIZENS, AS THE PUBLIC WAS/IS [SIC] BEING DENIED THEIR U.S CONST[ITUTION] [FIRST] AMEND[MENT] RIGHTS, PURSUANT TO R[ULE] 1[:]38, AND OPEN COURT PROCEEDINGS, TO TRIALS AND HEARINGS, THAT WAS [SIC] DENIED TO [DEFENDANT] ANY NOTICE, TO SEEK AN EXTENDED/ENHANCED TERM SENTENCE OF LIFE, WHICH IMPOSITION OF IT [SIC] IN THE CASE AT BAR WAS FULLY ILLEGAL AND UNCONSTITUTIONAL.
Having reviewed the record, we cannot agree with any of defendant's contentions. We conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following brief comments.
Credits for time a defendant serves prior to the reversal of a conviction on direct appeal should be treated as prior service credits rather than jail credits. State v. Rippy, 431 N.J. Super. 338, 354 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014). Thus, the judge properly ruled that 1167 of the 2592 total days of credit defendant had accumulated, which represented the time he spent in custody before the death sentence was vacated by our Supreme Court, should be treated as prior service credits. As we observed in Rippy, "[t]he erroneous characterization of this prior service credit as jail credit does not have any impact on [a defendant's] sentence, but it is inaccurate and likely to cause confusion." Ibid. Thus, the trial judge properly issued an amended JOC to reflect the appropriate credits.
Defendant argues that he should have received 1167 days of prior service credit and 1425 days of jail credit against his sentence for murder and the same number of credits against his "separate" sentence for aggravated sexual assault. However, as our Supreme Court made clear in State v. Hernandez, if, as here, "multiple charges are embodied in a single indictment and two or more counts are disposed of, the total amount of jail credits reduces the aggregate custodial sentence imposed[,]" rather than each sentence the defendant receives on the individual charges. 208 N.J. 24, 47-48 (2011) (emphasis added).
Contrary to defendant's contention, he was also not entitled to additional days of credit for each "leap year" he spent in custody. Yokley v. Belaski, 982 F.2d 423, 425 (10th Cir. 1992) (holding that "'[f]or purposes of sentencing[,] . . . when an inmate is incarcerated for a term of years it makes no difference that a year contains 365 or, in the case of a leap year, 366 days'").
Finally, the sentence defendant received on the murder charge, life in prison with a thirty-year period of parole ineligibility, was not illegal. "[A]n 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)).
When defendant committed the murder in 1985, N.J.S.A. 2C:11-3(b) stated in pertinent part, as it does today, that
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.Thus, the life sentence and thirty-year period of parole ineligibility defendant received in this case was within the statutory range for first-degree murder and, therefore, not illegal. State v. King, 372 N.J. Super. 227, 243-44 (App. Div. 2004) (observing that life sentences for murder are permissible based upon the clear language of N.J.S.A. 2C:11-3(b)), certif. denied, 185 N.J. 266 (2005). Because the sentence was within the range permitted by the governing law, the judge also properly dismissed defendant's claims that the sentence was excessive. See State v. Hess, 207 N.J. 123, 145 (2011) (stating that an excessive sentence claim must be raised on direct appeal and "is not cognizable on PCR").
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION