State v. Levine

• Citation: 253 N.J.Super. 149,601 A.2d 249
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Kenneth E. LEVINE, Defendant-Appellant.
• Decision Date: 17 January 1992
• Court: New Jersey Superior Court – Appellate Division

Page 149

253 N.J.Super. 149

601 A.2d 249

STATE of New Jersey, Plaintiff-Respondent, v. Kenneth E. LEVINE, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted Dec. 17, 1991.

Decided Jan. 17, 1992.

Wilfredo Caraballo, Public Defender, for defendant-appellant (Daniel V. Gautieri, Asst. Deputy Public Defender, of counsel, and on the letter brief).

Robert J. Del Tufo, Atty. Gen., for plaintiff-respondent (Jessica S. Oppenheim, Deputy Atty. Gen., of counsel, and on the letter brief).

Before Judges MICHELS and CONLEY.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Defendant Kenneth Levine appeals from an order of the Law Division that denied his motion to correct his sentence, which he claims was illegal. The pivotal issue raised by this appeal is whether a defendant, who has served a federal prison or penitentiary term, can properly be sentenced to the Youth Correctional Institution Complex in view of the provisions of N.J.S.A. 30:4-147.

The procedural background giving rise to this appeal commenced in the January, 1974 term of the Union County Grand Jury when defendant was indicted (Indictment No. 1102) and charged with conspiracy to commit robbery in violation of N.J.S.A. 2A:141-1, N.J.S.A. 2A:98-1 and N.J.S.A. 2A:98-2 (Count 1); possession of a deadly weapon, to wit, a pistol, without first having obtained a permit to carry same, in violation of N.J.S.A. 2A:151-41(a) (Count 2); possession of a pistol with intent to use same unlawfully against another in violation of N.J.S.A. 2A:151-56 (Count 3); possession of a dangerous instrument, to wit, a knife, in violation of N.J.S.A. 2A:151-41(c) (Count 4); and possession of a knife with intent to use same unlawfully against another in violation of N.J.S.A. 2A:151-56 (Count 5). In July, 1975, following plea negotiations, defendant pleaded guilty to conspiracy to commit robbery under Count 1 and to possession of a knife under Count 4. In September, 1975, in accordance with the plea agreement, the trial court sentenced defendant to 364 days in the Union County Jail, suspended the sentence and placed defendant on probation for two years for his conviction for conspiracy under Count 1. In addition, the trial court sentenced defendant to a concurrent 364 day jail term for his conviction for possession of a knife under Count 4. The remaining counts of this indictment were dismissed.

In the January, 1975 term, the Union County Grand Jury indicted defendant (Indictment No. 1019) and charged him with forgery in violation of N.J.S.A. 2A:109-1(a) (Count 1); breaking and entering into a motor vehicle with intent to steal in violation of N.J.S.A. 2A:94-1 (Count 2); and larceny in violation of N.J.S.A. 2A:119-2(a) (Count 3). In December 1977, following plea negotiations, defendant entered a retraxit plea of guilty to forgery under Count 1. In January, 1978, in accordance with the plea agreement, the trial court sentenced defendant to a five-year indeterminate term at the Youth Reception and Correction Center, Yardville, ¹ which was to be served concurrently with a sentence imposed under Union County Indictment No. 1159 and with a federal prison term which defendant was then serving. The remaining counts of the indictment were dismissed.

In the May, 1975 term, the Union County Grand Jury had indicted defendant (Indictment No. 1159), and charged him with assault with intent to commit robbery in violation of N.J.S.A. 2A:90-2 (Count 1); robbery in violation of N.J.S.A. 2A:141-1 (Count 2); robbery while armed with a knife in violation of N.J.S.A. 2A:151-5 (Count 3); and possession of a dangerous instrument, to wit, a knife, in violation of N.J.S.A. 2A:151-41(c) (Count 4). In January, 1978, following plea negotiations, defendant pleaded guilty to robbery under Count 2 and armed robbery under Count 3. The trial court sentenced defendant to a indeterminate term not to exceed 15 years at the Youth Reception and Correction Center, Yardville, for his robbery conviction under Count 2 and to a concurrent indeterminate term not to exceed five years for his armed robbery conviction under Count 3. These concurrent indeterminate terms were to run concurrently with the sentence imposed under Indictment No. 1019 and with the federal prison term defendant was then serving. The remaining counts of the indictment were dismissed. Defendant appealed, challenging solely the excessiveness of his sentence. In February, 1979, we affirmed defendant's sentences imposed thereon in an unpublished opinion, State v. Levine, A-3036-77.

In February, 1990, defendant filed a pro se post-conviction petition to correct his sentence. He claimed that his sentence to the Youth Reception and Correction Center, Yardville, was illegal because he had previously served a federal penitentiary sentence. The trial court denied defendant's motion, reasoning that N.J.S.A. 30:4-147 did not specifically exclude persons who had previously been sentenced to a Federal prison from being sentenced to the Youth Correctional Institution Complex. Defendant appealed. Defendant seeks a reversal of the order denying his post-conviction petition to correct his sentence. He claims that his indeterminate sentence to the Youth Reception and Correction Center, Yardville, was illegal, and urges us to modify his sentence to a term of 15 years.

Preliminarily, a threshold question is whether defendant's claim may be presented on post-conviction relief. R. 3:22-2(c) provides that a petition for post-conviction relief is cognizable if based on "[i]mposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law." A distinction must be drawn, however, between a claim that a sentence is "illegal" and a claim that the sentence is merely "excessive":

The rule is, of course, fairly established that mere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground of post-conviction relief and can only be raised on direct appeal from the conviction. [State v. Clark, 65 N.J. 426, 436-37, 323 A.2d 470 (1974) (emphasis added) ].

Accord, State v. Flores, 228 N.J.Super. 586, 591-92, 550 A.2d 752 (App.Div.1988), certif. denied, 115 N.J. 78, 556 A.2d 1220 (1989); State v. Pierce, 115 N.J.Super. 346, 347, 279 A.2d 871 (App.Div.), certif. denied, 59 N.J. 362, 283 A.2d 106 (1971); see R. 3:21-10(a); R. 3:22-2; R. 3:22-12. Stated somewhat differently, "[o]nly the legality of the sentence, as opposed to excessiveness, can be challenged on the post-appeal application." State v. Flippen, 208 N.J.Super. 573, 575 n. 2, 506 A.2d 768 (App.Div.1986).

Although the distinctions between "excessive" and "illegal" sentences are often blurred, State v. Flores, supra, 228 N.J.Super. at 592-3, 594, 550 A.2d 752, such a problem is not presented in this case. Here, petitioner clearly contends that he could not be sentenced to an indeterminate term to the Youth Reception and Correction Center pursuant to N.J.S.A. 30:4-147 because he had previously been sentenced to a Federal prison term. Thus, petitioner contends that his sentence is not authorized by statute, and, therefore, is illegal. This clearly is an appropriate ground for post-conviction relief. See State v. Clark, supra, 65 N.J. at 436-37, 323 A.2d 470; State v. Flores, 228 N.J.Super. at 591-92, 550 A.2d 752.

The State argues that, pursuant to R. 3:22-4, defendant is barred from presenting this claim on an application for post-conviction relief because he did not raise it upon direct appeal. The general rule is that an issue which could have been raised upon direct appeal will not be cognizable in a post-conviction proceeding, absent exceptional circumstances such as (a) the issue could not have been raised before, (b) barring the application would cause fundamental injustice, or (c) denial of relief would be a violation of the Federal or State Constitution. R. 3:22-4; State v. Cerbo, 78 N.J. 595, 605, 397 A.2d 671 (1979); see State v. Boyd, 165 N.J.Super. 304, 311, 398 A.2d 129 (App.Div.1979), certif. denied, 85 N.J. 128, 425 A.2d 285 (1980). However, an illegal sentence may be corrected at any time. State v. Rhoda, 206 N.J.Super. 584, 593, 503 A.2d 364 (App.Div.1986); State v. Paladino, 203 N.J.Super. 537, 549, 497 A.2d 562 (App.Div.1985); State v. Heisler, 192 N.J.Super. 586, 592, 471 A.2d 805 (App.Div.1984); State v. Sheppard, 125 N.J.Super. 332, 336, 310 A.2d 731 (App.Div.), certif. denied, 64 N.J. 318, 315 A.2d 407 (1973); State v. Strupp, 101 N.J.Super. 94, 98, 243 A.2d 272 (App.Div.1968); State v. Boening, 63 N.J.Super. 588, 593, 165 A.2d 203 (App.Div.1960). R. 3:22-12 specifically provides:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect. (Emphasis added).

This rule is a "corollary" to the rule that an "illegal" sentence, as opposed to an "excessive" sentence, may be challenged in post-conviction relief proceedings. State v. Flores supra, 228 N.J.Super. at 592, 550 A.2d 752. Thus, the rule that an "illegal" sentence may be corrected at any time is a "limited exception to the general rule [and] should be confined to cases in which the quantum of the sentence imposed is beyond the maximum provided by law or where the term set by the court is not authorized by any statutory provision." Id. at 595, 550 A.2d 752. But see State v. Ervin, 241 N.J.Super. 458, 464-65, 575 A.2d 491 (App.Div.1989), certif. denied, 121 N.J. 634, 583 A.2d 328 (1990) (the illegality of the sentence considered, although the issue was not raised on a previous direct appeal, because the conditions of R. 3:22-4(a) and (b) were found to be met). Here, defendant claims...