STATE OF NEW JERSEY v. HARVEY COLVIN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4817-04T24817-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HARVEY COLVIN,

Defendant-Appellant.

________________________________

 

Submitted September 27, 2006 - Decided October 13, 2006

Before Judges Lefelt, Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey,

Law Division, Cumberland County, 93-09-01003-I.

Harvey Colin, appellant pro se.

Ronald J. Casella, Cumberland County Prosecutor, attorney for the respondent (Christina E. Foglio, Assistant Prosecutor, of counsel, and on the brief).

PER CURIAM

Defendant Harvey Colvin appeals from the April 18, 2005 order denying his second motion to vacate a guilty plea entered almost twelve years ago, on November 7, 1994. We affirm.

On September 30, 1993, defendant was charged with two counts of first-degree murder, N.J.S.A. 2C:11-3a, and one count each of first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree witness tampering, N.J.S.A. 2C:28-5a; and third-degree hindering prosecution, N.J.S.A. 2C:29-3b. Following a fight with his pregnant girlfriend during which she was struck in the head with a blunt object, defendant drove the car, from which the victim had just exited, in reverse, running her over and killing her. He then discarded the body in a wooded area, paid someone to help him further conceal the body in a grave, lied to the police to cover up the offense, and enlisted another to provide an alibi.

Defendant entered into a negotiated plea agreement resulting in his guilty plea to the lesser-included offense of aggravated manslaughter as well as to witness tampering and hindering prosecution. Defendant also pled to a two-count accusation charging hindering prosecution and compounding. The State's undertaking was to recommend a custodial term of thirty years with a fifteen-year period of parole ineligibility for aggravated manslaughter, and consecutive five-year terms on the remaining four crimes, for an aggregate term of fifty years with fifteen years of parole ineligibility.

On December 22, 1994, defendant was sentenced in accordance with the terms of the plea agreement. He appealed his sentence as excessive. We affirmed, finding that the sentence was "not manifestly excessive or unduly punitive and [did] not constitute an abuse of discretion[]", and the Supreme Court denied defendant's petition for certification. State v. Colvin, 144 N.J. 379 (1996). Defendant then moved to withdraw his guilty plea, arguing:

that the plea agreement violated his constitutional rights, that the trial court erred in accepting his plea "without a proper evaluation to determine [whether the] defendant was capable of making a knowing and intelligent decision in accepting a plea as negotiated," and that his counsel was ineffective. Defendant also contended that the trial court had erred in sentencing him to consecutive terms on the counts in the accusation.

[State v. Colvin, No. A-0595-97T4 (App. Div. March 1, 1999).]

The trial court denied the motion, and we affirmed. Defendant subsequently filed a petition for post-conviction relief (PCR), which the Law Division denied. We affirmed the denial, State v. Colvin, No. A-0595-97T4, (App. Div. March 1, 1999), and the Supreme Court denied defendant's petition for certification. State v. Colvin, 161 N.J. 149 (1999). Thereafter, defendant filed a motion for a new trial, which was heard as a PCR application and denied based on the time limitation of Rule 3:22-12.

On October 1, 2003, the defendant filed a third PCR petition asserting that the consecutive sentences imposed were unconstitutional. However, he withdrew the application on May 11, 2004, asserting, "I have come to the realization that this issue is completely without merit." Notwithstanding this concession, on July 13, 2004, almost ten years after his judgment of conviction, defendant filed a second motion to vacate his guilty plea pursuant to Rule 3:21-1, or in effect a fourth PCR petition pursuant to Rule 3:22-2. As a basis for setting aside his negotiated guilty plea, defendant argued that the consecutive sentences imposed by the trial judge were illegal under State v. Yarbough, 100 N.J. 627 (1985), and that he was misinformed as to a material element of his plea negotiation, namely that his parole eligibility would begin after fifteen years in custody rather than the sixteen and two-thirds years apparently set by the parole authorities.

Judge Farrell denied the application, reasoning:

The offenses charged occurred on July 26 or 27, 1993. This is prior to the effective date of the amendment to N.J.S.A. 2C:44-5(a) which took effect on August 5, 1993. Prior to this amendment, consecutive sentences were limited by the Yarbough "outer limit" so that "the cumulation of consecutive sentences [could not] exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses." State v. Yarbough, 100 N.J. at 643, 644. The sentence imposed pursuant to the negotiated plea herein exceeds the Yarbough outer limit for the final charges contained in the plea. It should be remembered however, that defendant was facing 2 first degree murder charges, a first degree kidnapping and 4 third degree offenses. The murder charges carried a potential of 30 years with a 30 year period of parole ineligibility on each count. The kidnapping carried a maximum sentence of 30 years with a presumptive term of 20 years. Thus, it appears that defendant's exposure was significantly greater than the plea which was negotiated on his behalf and that the Yarbough "outer limit" could have been significantly greater. . .

Although defendant has not provided any of the pleadings relating to his 1997 motion and appeal, page 3 of the Appellate Division decision suggests that the legality of the consecutive terms imposed herein has already been addressed both at the trial and appellate levels. If this issue was not raised by that appeal, it would appear to be time barred by R. 2:4-1 at this point.

Defendant next argues that he has met the "manifest injustice" criteria of R. 3:21-1 because he was wrongfully led to believe that he would be eligible for parole after serving 15 years of imprisonment. I find that this argument also lacks merit. . .

The discussion between the court, prosecutor, defense counsel and the defendant at the time of his plea clearly shows that all involved understood that the defendant would be receiving a sentence of 30 years with a 15 year parole disqualifier on the amended aggravated manslaughter charge and the remaining sentences imposed would run consecutive but would have no additional parole disqualifier. . . The Judgment of Conviction confirms that defendant was sentenced in accordance with his negotiated plea. Accordingly, I find that defendant has failed to meet his burden to establish a manifest injustice [as] required by R. 3:21-1. . .

The State also suggests that the defendant is really presenting a post-conviction relief application rather than an application to withdraw his plea pursuant to R. 3:21-1. While defendant vehemently denies this claim, a post-conviction relief application would be barred by R. 3:22-12 as being filed out of time. Since I have determined that the sentence imposed herein is not illegal, none of the exceptions to that rule apply.

On appeal, defendant raises the same arguments as well as others concerning the legality or excessiveness of his sentence:

I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEA BECAUSE THE AGGREGATE SENTENCE OF FIFTY YEARS IS ILLEGAL AND AS A MATTER OF LAW, THERE CAN BE NO GUILTY PLEA TO AN ILLEGAL SENTENCE.

II. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO PERMIT HIM TO WITHDRAW HIS GUILTY PLEA SINCE HE WAS DECEIVED BY HIS COUNSEL, THE PROSECUTOR AND JUDGE PORRECA INTO BELIEVING THAT HE WOULD BECOME ELIGIBLE FOR PAROLE CONSIDERATION AFTER SERVING FIFTEEN YEARS IMPRISONMENT, THE JUDICIALLY IMPOSED MANDATORY MINIMUM SENTENCE.

III. THE COURT ERRED WHEN IT RULED THAT THIS CASE DOES PRESENT AN "EXCEPTIONAL CIRCUMSTANCE" REQUIRING THIS COURT TO DEVIATE FROM YARBOUGH GUIDELINE 6.

IV. THE TRIAL COURT ERRED IN ITS FAILURE TO DECLINE TO FOLLOW STATE V. FLORES.

V. THE TRIAL COURT ERRED EVEN IF DEFENDANT'S YARBOUGH CLAIM IS TREATED AS AN EXCESSIVE SENTENCE ARGUMENT THIS COURT HAS THE AUTHORITY TO CONSIDER IT ON ITS MERITS.

VI. THE TRIAL COURT ERRED IN RULING THAT ARGUMENTS RAISED IN POINT II OF DEFENDANT'S PLENARY BRIEF IS NOT AN EXCESSIVE SENTENCE ARGUMENT OR A PCR ISSUE, DESPITE THE STATE'S CONTENTION TO THE CONTRARY.

VII. THE TRIAL COURT ERRED DURING THE WEIGHING AND BALANCING FACTORS PROCESS WHICH RESULTED IN DEFENDANT RECEIVING A HIGHER TERM THAN WAS CALLED FOR BY 2C:44-1(F)(1)(A)&(D), THIS CONSTITUTES AN ILLEGAL SENTENCE.

VIII. DEFENDANT'S SENTENCE IS ILLEGAL IN VIOLATION OF BOOKER/FANFAN.

IX. THE TRIAL COURT ERRED BY IMPROPERLY WEIGHING AND BALANCING THE AGGRAVATING AND MITIGATING FACTORS AND ITS FAILURE IN CONSIDERING THEM APPROPRIATELY WHEN IMPOSING SENTENCING UPON THE DEFENDANT THEREBY ENGENDERING AN ILLEGALITY.

A. INAPPROPRIATE AGGRAVATING FACTORS.

B. CONSIDERING MITIGATING FACTORS SUPPORTED BY THE RECORD.

C. MOST LENIENT TERMS COULD HAVE BEEN IMPOSED.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by Judge Farrell in his well-reasoned written decision of April 18, 2005. We add only the following comments.

Whether considered a PCR petition or motion to withdraw a guilty plea, defendant's application is grossly out of time and therefore barred from review now. R. 3:22-12; R. 3:21-1. To be sure, claims of an illegal sentence fall outside the five-year time bar of Rule 3:22-12. However, defendant's contention that his aggregate fifty-year term exceeds Yarbough's overall outer limit by fifteen years is clearly one of excessiveness rather than illegality of sentence. See State v. Flores, 228 N.J. Super. 586, 596 (App. Div. 1988). On this score, no one disagrees that the sentences imposed on defendant were all legally within statutory limits. As such, defendant's Yarbough claim comes within the temporal proscription of Rule 3:22-12. Moreover, reduced to a claim of excessiveness of sentence, the issue is precluded from review for yet another reason, having been previously raised on direct appeal and rejected. R. 3:22-5.

Of course, such an untimely claim may nevertheless be heard upon a showing of "manifest injustice", Rule 3:21-1, or "excusable neglect", Rule 3:22-12. Defendant has demonstrated neither. In particular, as to the former, "[a] motion to withdraw a plea of guilty . . . shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." R. 3:21-1; see also State v. Fischer, 38 N.J. 40, 48 (1962); State v. Deutsch, 34 N.J. 190, 198 (1961). To demonstrate manifest injustice, a defendant must:

show that he or she was "'misinformed' about a material element of a plea negotiation" or that his or her "'reasonable expectations,' grounded in the terms of the plea agreement" were not fulfilled, and that he or she "is prejudiced by enforcement of the agreement." "Hence, the plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead."

[State v. Luckey, 366 N.J. Super. 79, 88 (App. Div. 2004) (citations omitted).]

The claim here is that defendant was unaware that one of the penal consequences of his guilty plea was that he serve a minimum of one-third of his sentence, i.e., 16 2/3 years, as supposedly determined by the parole authorities, rather than the fifteen-year period of parole ineligibility imposed by the court on the aggravated manslaughter conviction alone.

This claim, however, simply fails to justify withdrawal of defendant's guilty plea.

In the first place, review of State Parole Board action is exclusively by way of a direct appeal from a final agency decision, Rule 2:2-3(a)(2); Johnson v. N.J. State Parole Bd., 131 N.J. Super. 513 (App. Div. 1974), certif. denied, 67 N.J. 94 (1975), after exhaustion of all available administrative relief. Elon Associates v. Twp. of Howell, 370 N.J. Super. 475, 482, 484 (App. Div.), certif. denied, 182 N.J. 149 (2004). Thus, any final State Parole Board decision as to defendant's minimum period of parole ineligibility or, for that matter, the jail time credits ultimately to be applied to his sentence, is not reviewable by a motion to withdraw a guilty plea or a PCR petition filed in the Law Division.

Second, defendant's expectation of a shorter period of parole ineligibility was neither reasonable nor likely material in his decision to plead. See State v. Howard, 110 N.J. 113, 123 (1988). Indisputably, at time of plea, defendant was told that he would have to serve a minimum of at least fifteen years before becoming eligible for parole. He was never guaranteed parole after fifteen years. In other words, defendant was not told how long he would have to serve without eligibility, only that it would be at least fifteen years. In any event, considering the extensive sentence defendant was facing upon conviction of the charges in the indictment and subsequent accusation, it is unlikely that a 16 2/3-year, rather than fifteen-year, term of parole ineligibility would have made a difference in defendant's decision to accept the plea agreement. See Pressler, Current N.J. Court Rules, comment 4 on R. 3:21-1 (2006); State v. Johnson, 182 N.J. 232, 244 (2005). Under the circumstances, we perceive no prejudice to defendant by allowing his guilty plea to stand.

Finally, defendant claims that his sentence violated the holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159 L. Ed. 2d 851 (2004), because it was greater than the then-presumptive term. The Blakely holding that other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, does not apply to this matter. State v. Natale, 184 N.J. 458, 494 (2005). In Natale, the Court held that its decision would be applied with pipeline retroactivity, that is, to defendants with cases on appeal as of the date of the decision, August 2, 2005, who have raised Blakely claims at trial or on direct appeal. Ibid. Here, Blakely arguments were not raised at sentencing, on direct appeal or even in defendant's prior PCR petitions. In fact, defendant did not have a direct appeal pending in August 2005. Accordingly, this matter is not in the Blakely pipeline.

Defendant's remaining arguments concerning the propriety of his sentence are cognizable only by direct appeal, Rule 2:10-3; State v. Pierce, 115 N.J. Super. 346 (App. Div.), certif. denied, 59 N.J. 362 (1971), and because they either have been decided in prior proceedings, Rule 3:22-5, or if not previously raised, should have been, Rule 3:22-4, they are therefore barred from consideration now. They are, as well, lacking in substantive merit. R. 2:11-3(e)(2).

Affirmed.

 

Pursuant to N.J.S.A. 30:4-123.51:

Each adult inmate sentenced to a term of incarceration in a county penal institution, or to a specific term of years at the State Prison or the correctional institution for women shall become primarily eligible for parole after having served any judicial or statutory mandatory minimum term, or one-third of the sentence imposed where no mandatory minimum term has been imposed less commutation time for good behavior.

Here, defendant's sentence included parole ineligibility for the first count of aggravated manslaughter, but did not include one for the other counts and so, according to defendant, the State Parole Board calculated one-third of the defendant's entire sentence, i.e., 16 2/3 years, in order to determine when he would be eligible for parole.

(continued)

(continued)

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A-4817-04T2

October 13, 2006