Opinion
DOCKET NO. A-0219-13T4
03-23-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROY SULLIVAN, Defendant-Appellant.
Roy Sullivan, appellant pro se. Grace H. Park, Acting Prosecutor of Union County, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 89-05-0914. Roy Sullivan, appellant pro se. Grace H. Park, Acting Prosecutor of Union County, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Roy Sullivan appeals from the August 23, 2013 Law Division order denying his motion to correct an illegal sentence. For the reasons that follow, we affirm.
We discern the following facts from the record. On April 27, 1989, a woman was fatally stabbed in her apartment in Plainfield. The police arrested defendant and charged him with several counts including murder, robbery, felony murder, and weapons offenses. After a trial, the jury convicted defendant of murder and first-degree robbery. On September 14, 1990, the trial court sentenced defendant to thirty years to life in prison with thirty years of parole ineligibility.
We note at the time defendant was sentenced, the applicable sentencing statute provided that
Murder is a crime of the first degree but a person convicted of murder shall be sentenced, except as provided in subsection c. of this section, by the court to a term of 30 years, during which the person shall not be eligible for parole or to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole. [N.J.S.A. 2C:11-3(b) (1991).]
On December 16, 1992, defendant filed his first appeal, alleging that the sentence imposed was "unduly punitive and manifestly excessive[.]" On January 19, 1993, this court affirmed defendant's conviction and sentence. The New Jersey Supreme Court denied defendant's petition for certification on March 9, 1993.
Thereafter, defendant filed a federal habeas corpus petition wherein he again claimed that his sentence was excessive. Defendant's petition was denied on December 23, 1994, and the Third Circuit Court of Appeals denied his appeal.
Defendant then filed the first of his petitions for post-conviction relief (PCR). On January 13, 1999, the trial court denied defendant's PCR petition, finding that it lacked merit. Specifically, the court rejected that defendant's claim that the life sentence was excessive and should have been reduced to thirty years with thirty years of parole ineligibility. On or about July 20, 2011, defendant filed his second PCR petition, arguing that his life sentence was "unconstitutional and illegal." The trial court denied defendant's second PCR on February 9, 2012.
Defendant then filed a motion to correct an illegal sentence on November 14, 2012. Judge Joseph P. Donohue denied defendant's motion on August 23, 2013. In denying defendant's motion, Judge Donohue stated:
In the instant matter, you filed a Motion to Correct an Illegal Sentence. Pursuant to R. 3:21-10, a motion to correct an illegal sentence may be made at any time. However, merely labeling a sentence illegal does not permit filing at any time. Your 1990 sentence was not illegal. As the Code clearly states, murder has always been considered a first-degree crime. However, a defendant may be sentenced "to a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole." Judge Toy correctly sentenced you within the range. The sentence was affirmed by the Appellate Division in 1993, the Federal
District Court in 1994, and your PCRs in 1999 and 2012.
On appeal, defendant argues that his sentence is illegal because the sentencing statute, N.J.S.A. 2C:11-3(b)(1), arbitrarily and capriciously permitted some offenders, like defendant, to be sentenced to life in prison while others were sentenced to thirty years without parole. Claiming that the range permitted in the statute leads to a disparity and lack of uniformity in sentencing, defendant contends that his sentence is unconstitutional. Defendant does not provide factual support for his contention that persons similarly situated are treated differently.
Having considered the record, we conclude that defendant's argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the cogent reasons set forth in Judge Donohue's August 23, 2013 written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION