Opinion
DOCKET NO. A-2160-11T4
04-22-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEFFREY D. LYNER, a/k/a JEFFREY DIONNE LYNER, BRIAN GOODMAN, DAVID MCGUIRE, Defendant-Appellant.
Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro, on the brief). Deborah A. Hay, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Ms. Hay, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Happas.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 92-02-00406.
Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro, on the brief).
Deborah A. Hay, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Ms. Hay, on the brief). PER CURIAM
Defendant appeals from the December 9, 2011 order denying his motion to correct an illegal sentence. Defendant asserts that the court erred in imposing consecutive sentences and misapplied the factors set forth in State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied sub nom Yarbough v. New Jersey, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We conclude that defendant is actually challenging the excessiveness of his sentence. We affirm.
A jury found defendant guilty of two counts of murder, N.J.S.A. 2C:11-3a(1),(2); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a handgun without a permit, N.J.S.A. 2C:39-5b. The trial court imposed consecutive sentences of life imprisonment with thirty-year parole disqualifiers on the convictions for murder. Concurrent sentences were imposed on the weapons convictions.
On direct appeal, defendant argued that the trial court's imposition of two consecutive life sentences, with separate thirty-year parole disqualifiers, was excessive. We affirmed defendant's convictions, but remanded for reconsideration of the sentences imposed in light of Yarbough. State v. Lyner, No. A-2414-92 (App. Div. December 9, 1994) (slip op. at 4). Defendant was resentenced on January 6, 1995. The judge, in his written explanation, stated:
With respect to counts 1 and 2: the two separate deaths/murders: I am convinced that [Yarbough] does not dictate . . . that sentences should be concurrent or thereThe Supreme Court denied defendant's petition for certification. State v. Lyner, 139 N.J. 442 (1995).
should be reduced or lesser sentences in regards to one of the deaths. Certainly that is not what [Yarbough] says and certainly that is not what the Appellate Remand suggests to me. They merely set forth that I should look at the sentence that I imposed with [Yarbough] in mind. In this case, there were two separate distinct deaths. . . . [A]lthough these two murders occurred within a very short time of each other, [the defendant] shot twice. He killed two different people. They are separate and apart crimes and it would denigrate the interest of justice and our sentencing system if concurrent sentences were imposed . . . . The reason I am doing this: there should be no free crimes, as [Yarbough] clearly suggests. By making anything concurrent in this type of case it would be giving this defendant a free crime: one murder he gets for nothing.
Defendant subsequently filed two petitions for post-conviction relief (PCR), which the Law Division denied. We affirmed the denials. State v. Lyner, No. A-1546-95 (App. Div. June 4, 1997); A-1161-02 (App Div. March 4, 2005). A petition for certification was filed only as to the first PCR, which was denied by the Supreme Court. State v. Lyner, 151 N.J. 468 (1997).
Defendant then filed a motion to correct an illegal sentence, which is the subject of this appeal. The trial court entered an order and written decision on December 9, 2011 denying defendant's motion. The court concluded defendant's claim that his sentence was illegal because it did not comply with the guidelines articulated in Yarbough, was the same argument he made on his second PCR.
We agree that defendant previously raised this argument. However, it was not raised on his second PCR but on direct appeal. State v. Lyner, No. A-2414-92, (App. Div. December 9, 1994)(slip op. at 4)("Defendant's final argument on appeal is that the imposition of two consecutive life sentences, with separate thirty-year parole disqualifiers, is excessive.").
On appeal, defendant contends that the trial court erred in denying his motion to correct an illegal sentence. We disagree. Based on our review of the record and applicable law, we are satisfied defendant's sentencing arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We add the following brief comments.
Defendant's argument, although framed as seeking relief from an illegal sentence, is actually challenging the alleged excessiveness of his sentence. It is well-established that the issue of the imposition of consecutive sentences does not relate to the issue of sentence legality. State v Avecedo, 205 N.J. 40, 47 (2011).
Moreover, the issue of excessiveness was previously raised on direct appeal and we remanded to the trial court for re-sentencing. The defendant was re-sentenced pursuant to our directive. Defendant's petition for certification was denied. Consequently, we are precluded from reviewing this issue again. R. 3:22-5.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION