STATE OF NEW JERSEY v. KEITH McNEIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2246-08T42246-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEITH McNEIL,

Defendant-Appellant.

________________________________

Submitted March 2, 2010 - Decided April 7, 2010

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

83-06-0773.

Keith McNeil, appellant pro se.

Theodore F.L. Housel, Atlantic County Prosecutor,

attorney for respondent (James F. Smith, Assistant

County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Keith McNeil appeals from a November 7, 2008 order of the Law Division that denied his second petition for post-conviction relief (PCR), arguing that his plea agreement, entered into twenty-four years ago, was violated by the so-called retroactive cancellation of his accrued good time and commutation credits pursuant to Merola v. Dep't of Corrections, 285 N.J. Super. 501 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996). We affirm.

By way of background, in November 1983, following plea negotiations, defendant pleaded guilty to felony murder, N.J.S.A. 2C:11-3a(3). In exchange for the guilty plea, the State recommended that other criminal charges be dismissed. The State, however, made no recommendation with respect to the sentence, but reserved its right to speak at sentencing.

On December 23, 1983, the trial court sentenced defendant to a thirty-year term without parole, assessed a $25.00 Violent Crimes Compensation Board penalty for his felony murder conviction, and dismissed the other criminal charges. In February 1984, defendant appealed, challenging the alleged excessiveness of his sentence. In October 1984, following a hearing on the Excessive Sentencing Oral Argument (ESOA) calendar, we affirmed defendant's sentence in an unpublished order in State v. McNeil, No. A-2608-83T4 (App. Div. 1984) (McNeil I).

In June 1994, defendant filed a PCR petition contending that he did not knowingly and voluntarily plead guilty to felony murder. Defendant claimed that he was not told that if he pleaded guilty his sentence of thirty years would carry a parole ineligibility period of thirty years, and that had he known that the minimum sentence he would receive was thirty years without parole, he would not have pleaded guilty. In his brief filed in support of his petition, defendant contended that (1) he did not know all of the penal consequences of his plea agreement before he waived his constitutional rights and pleaded guilty; (2) the five-year ban on PCR applications contained in Rule 3:22-12 was not applicable; and (3) Rule 3:22-4 did not bar his PCR petition because he raised substantial constitutional issues. In October 1994, following argument, the trial court denied defendant's PCR petition. We affirmed, finding all of defendant's arguments without merit, Rule 2:11-3(e)(2), and procedurally barred, Rule 3:22-5; Rule 3:22-12. State v. McNeil, No. A-1333-94T3 (App. Div. Nov. 28, 1995) (slip op. at 3-4) (McNeil II). By order dated May 22, 1996, the Supreme Court dismissed defendant's subsequent petition for certification for lack of prosecution.

Thirteen years after denial of his first PCR petition, and twenty-four years following his guilty plea, defendant filed this, his second PCR petition, arguing that his guilty plea should be vacated because the retroactive cancellation of his commutation and good time credits accrued since the time of sentencing, as per the Merola decision, violated not only the plea agreement, but the State and Federal Constitutions as well. The PCR judge denied defendant's second PCR petition on both procedural and substantive grounds. As to the former, the court relied on the five-year time bar of Rule 3:22-12, as well as Rule 3:22-4 (claim not raised in prior proceeding) and Rule 3:22-5 (previously raised claim). On the merits, the PCR judge denied relief "on the basis that [defendant's] alleged grievance is not a direct consequence of his conviction and sentence but a collateral consequence resulting from the Appellate Division's decision regarding eligibility for commutation and/or good time credits."

On appeal, defendant raises the following issues:

I. THE RETROACTIVE CANCELLATION OF DEFENDANT'S WORK AND COMMUTATION CREDITS, AFTER THEY WERE ALREADY ENTERED ON HIS OFFICIAL CLASSIFICATION RECORDS, VIOLATED THE PLEA AGREEMENT, AS WELL AS THE CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES.

II. THE RETROACTIVE CANCELLATION OF DEFENDANT'S GOOD TIME CREDITS VIOLATED HIS PLEA AGREEMENT BY AN INCREASE IN HIS SENTENCE, WHEREFORE, THE PLEA MUST BE VACATED AND DEFENDANT ALLOWED TO PROCEED TO TRIAL.

III. THE LAW DIVISION ERRED BY FINDING THE MATTER INVOLVED "COLLATERAL" CONSEQUENCES OF THE PLEA, RATHER THAN "PENAL" CONSEQUENCES OF THE PLEA, WHEREFORE ITS DECISIION SHOULD BE REVERSED.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, 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). We, therefore, affirm substantially for the reasons stated by the PCR judge in his written opinion of November 10, 2008. We add, however, the following comments.

We have previously addressed the issue of whether commutation and work credits can be used to shorten a thirty-year term with no parole eligibility that is imposed under N.J.S.A. 2C:11-3b(1). In Merola, supra, we refused to apply commutation and work credits to reduce the petitioner's thirty-year term without parole under N.J.S.A. 2C:11-3b(1). 285 N.J. Super. at 507. First, we found that the thirty-year term imposed under N.J.S.A. 2C:11-3b(1) was unequivocally a mandatory minimum term, as evidenced by the use of the phrase "not eligible for parole." Ibid. We also cited a lengthy string of cases that upheld its interpretation of the sentence. Id. at 508. We concluded that, "[s]imply put, the New Jersey Code of Criminal Justice . . . does not permit convicted murderers to receive any sentence less than thirty years of incarceration." Id. at 507. We also found that the petitioner had no constitutionally-protected interest in reducing his sentence through the application of his credits. Id. at 512-14.

Moreover, N.J.S.A. 30:4-123.51a, which lays out guidelines for parole eligibility, specifically states that "commutation and work credits shall not in any way reduce any judicial or statutory mandatory minimum term and such credits accrued shall only be awarded subsequent to the expiration of the term." Thus, under Merola, a defendant who has been given a mandatory minimum sentence, and must serve all thirty years in prison, cannot have that term shortened by the application of commutation and work credits. N.J.S.A. 2C:11-3b(1). If his term of imprisonment is longer than the mandatory minimum of thirty years, then any additional time could be shortened by the application of the earned credits.

We perceive no constitutional issue presented by this scheme, and defendant presents no supportive authority for his contrary contention. Indeed, on appeal from the denial of defendant's first PCR petition, wherein defendant argued that "a defendant must know all the penal consequences of a plea agreement before he can waive his constitutional rights and plead guilty[,]" McNeil II, supra, slip op. at 3, we expressly held that "the record does not establish any infringement of defendant's constitutional rights or fundamental denial of justice which would warrant our consideration of the issue now raised by defendant in this appeal." Id. at 5. We consider this adjudication conclusive of the constitutional issue. See R. 3:22.

Nevertheless, we reiterate our earlier reasoning. In 1983, the trial court, prior to accepting defendant's guilty plea to felony murder, properly informed defendant that he was exposed to a thirty-year period of parole ineligibility, as appears from the following excerpts from the November 14, 1983 plea transcript:

THE COURT: Do you understand that the maximum sentence that could be imposed in the event that I accept your plea of guilty on the second count of this indictment would be a sentence of imprisonment in the State Prison of life imprisonment with a minimum of thirty years without eligibility for parole?

THE DEFENDANT: Yes, sir.

Having expressly bargained to serve a prison sentence with a minimum of thirty years without parole, defendant hardly could be heard to complain about a "development" in the law requiring him to actually serve the sentence he agreed to serve when his plea was accepted by the trial court. Defendant has made no showing that the so-called "retroactive cancellation" of good time and commutation credits offended his reasonable expectations from the plea agreement. In any event, to the extent a change in the law was actually effectuated following his sentencing, we find it to be a collateral, not penal, consequence of defendant's conviction and sentence for felony murder, and one not reasonably foreseeable by the trial judge. We therefore find, as did the PCR judge, no grounds for vacating defendant's guilty plea.

 
Affirmed.

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