STATE OF NEW JERSEY v. NICHOLAS P. MUSCIO, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1513-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent.

v.

NICHOLAS P. MUSCIO, JR.,

Defendant-Appellant.

________________________________

May 19, 2011

 

Submitted: May 9, 2011 - Decided:

 

Before Judges C.L. Miniman and LeWinn.

 

On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 89-08-0993.

 

Nicholas P. Muscio, Jr., appellant pro se.

 

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (David J. Bruno, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Nicholas Muscio appeals from a September 9, 2009, order denying his motion for reconsideration of sentence. We now affirm.

Defendant was charged with purposeful and knowing murder, contrary to N.J.S.A. 2C:11-3a(1), (2); burglary, contrary to N.J.S.A. 2C:18-2; possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4; and felony murder, contrary to N.J.S.A. 2C:11-3. He was tried in May 1991 and convicted on all counts except the weapons charge. He was then sentenced to an aggregate term of life plus twenty years with a forty-year parole disqualifier. He appealed his conviction and sentence. While that appeal was pending, defendant pled guilty to a similar offense in North Carolina. He was sentenced to forty years to be served concurrently with his still-pending life term after his initial conviction in New Jersey. Thereafter, we reversed and remanded for a new trial based on the State's use of other-crimes evidence.

Defendant was retried in 1995 and convicted of purposeful and knowing murder but acquitted of burglary and felony murder. The following year, he was sentenced to life in prison with a thirty-year parole disqualifier. This time, his sentence was to commence after defendant completed serving the sentence imposed in North Carolina, obviating the concurrent aspect of the North Carolina sentence. Defendant again appealed, but this time we affirmed his conviction and the sentence imposed. State v. Muscio, No. A-3947-95 (App. Div. Apr. 27, 1998). In that appeal, defendant raised six issues, the last of which is as follows:

"POINT VI - RESENTENCING DEFENDANT TO A CONSECUTIVE PRISON TERM AFTER HE WAS AGAIN CONVICTED FOLLOWING A SUCCESSFUL APPEAL, VIOLATED THE FEDERAL AND STATE CONSTITUTIONAL BARS AGAINST DOUBLE JEOPARDY, VIOLATED HIS DUE PROCESS RIGHTS, AND FAILED TO COMPORT WITH PRINCIPLES OF COMITY AND FAIRNESS. THE TRIAL COURT ALSO ERRED IN FAILING TO AWARD DEFENDANT WITH CREDIT FOR TIME SPENT IN CUSTODY FROM THE DATE OF THE REVERSAL OF HIS PREVIOUS CONVICTIONS UNTIL THE TIME HE WAS RESENTENCED. U.S. CONST. Amends. V and XIV; N.J. CONST. (1947), Art. I, pars. 1 and 11)[.]"

 

[Id. at 4.]

We addressed this point on appeal as follows:

Defendant argues the trial court erred when it sentenced defendant to life imprisonment with a thirty-year parole ineligibility period to run consecutively to the forty-year term imposed by the North Carolina court. Defendant contends the consecutive element of the sentence violated the double jeopardy clause and the principles of comity because it increased defendant's total sentence (the 1995 New Jersey sentence and the 1993 North Carolina sentence) from the 1991 New Jersey sentence, which was subsequently reversed. Defendant also contends that the trial court erred in calculating his time served. We reject the contentions.

 

The trial court imposed the challenged sentence after it reviewed defendant's criminal record and found the following aggravating factors: (1) the heinous, cruel, and depraved manner with which the crime was committed; (2) the risk defendant would commit further offenses; (3) the extent of defendant's criminal record and the nature of the crimes committed; (4) the need for deterring defendant and others from violating the law. See N.J.S.A. 2C:44-1a(1), (3), (6), (9). The court also stated:

 

This cowardly and evil man attacked women whom he did not know at a time when they were totally helpless and he applied cruel and unnecessary force and the progression is disturbing. Each incident being more violent than the other which culminated in the death of Joann Jenkins.

 

The court found no mitigating factors.

 

"Double Jeopardy Clause violations [in the area of sentencing] are analyzed in terms of the defendant's legitimate expectation regarding the finality of his sentence." State v. Towey, 244 N.J. Super. 582, 597 (App. Div.), certif. denied, 122 N.J. 159 (1990). A defendant has no expectation in finality when he challenges his underlying convictions which, if successful, eliminates the sentencing plan under which he was originally sentenced. Ibid. Neither the double jeopardy provision nor the dictates of equal protection or fundamental fairness impose[] an absolute bar to a more severe sentence upon reconviction. See North Carolina v. Pearce, 395 U.S. 711, 713, 89 S. Ct. 2072, 2074, 23 L. Ed. 2d 656, 662 (1969).

 

Beyond that, an intervening conviction, such as the North Carolina conviction, can provide justification for a second sentencing judge to increase a defendant's sentence. State v. Jacques, 52 N.J. 481, 482 (1968), cert. denied, 395 U.S. 985, 89 S. Ct. 2138, 23 L. Ed. 2d 774 (1969). In Jacques, defendant's first conviction was reversed, and he was retried and reconvicted. Between the first and second sentence[e]s, defendant was convicted of another offense. The Supreme Court held that "the second sentencing judge could properly increase the sentence by reason of intervening conviction." Ibid. Beyond that, comity does not require a sentencing court of this state to give full faith and credit to the sentencing disposition of a sister state. Breeden v. [N.J. Dep't of Corr.], 132 N.J. 457, 465 (1993).

 

Viewed in the context of these well-settled principles, the sentence is affirmed. The trial court sentence is both statutorily and constitutionally appropriate and it does not shock our conscience. See State v. O'Donnell, 117 N.J 210, 215 (1989). Indeed, it is justly deserved.

 

[Id. at 27-29.]

Eleven years after we affirmed his 1996 conviction and sentence, defendant filed a notice of motion for "reconsideration of sentence pursuant to [Rule] 3:21-4[7.3]."1 In his supporting certification, defendant related that between his two convictions in New Jersey he pled guilty to charges in North Carolina and received a forty-year sentence to run concurrent to the sentence imposed after his first trial in New Jersey. Thereafter, the second sentence imposed in New Jersey was made consecutive to the forty-year term in North Carolina. Defendant spent twelve years in jail in North Carolina and was returned to New Jersey in October 2008. He sought to be re-sentenced to a term of thirty years without parole and to have that sentence run concurrently to the forty-year sentence in North Carolina. That application was denied on September 9, 2009.2 Defendant's subsequent motion for reconsideration was denied on October 7, 2009. This appeal followed.

Defendant raises the following issues for our reconsideration:

POINT I - THE COURT BELOW ABUSED ITS DISCRETION IN FINDING THAT [DEFENDANT'S] MOTION FOR RECONSIDERATION OF SENTENCE WAS TIME BARRED UNDER [Rule] 3:21-10, ET SEQ.[] (Partially Raised Below).

 

POINT II - THE COURT BELOW ABUSED ITS DISCRETION IN FAILING TO ORDER A CONSECUTIVE NEW JERSEY SENTENCE TO BE RUN CONCURRENT[LY] WITH A NORTH CAROLINA SENTENCE. THIS IS PARTICULARLY SO SINCE NORTH CAROLINA ORDERED ITS SENTENCE TO BE RUN CONCURRENT[LY] WITH THE FIRST NEW JERSEY SENTENCE PRIOR TO ITS REVERSAL RESULTING IN A NEW TRIAL AND THE INSTANT CONSECUTIVE SENTENCE AS AFORESAID. (Raised Below).

Rule 3:21-4 governs the initial imposition of sentence. The text of the rule itself does not specifically address the issue of consecutive sentencing, although Comment 7.3 does address this issue. Pressler & Verniero, supra, comment 7.3 on R. 3:21-4. That rule certainly does not govern defendant's motion for reconsideration of sentence.

Instead, defendant's motion for reconsideration of sentence was ostensibly governed by Rule 3:21-10. Subparagraph (a) of that rule specifically provides that "a motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction." R. 3:21-10(a). This motion, which was in essence a motion to reduce or change a sentence, was not filed until about thirteen years after the judgment of conviction. It was clearly out of time. Further, the rule specifically provides that the court may not reduce or change a sentence after seventy-five days from the date of the judgment of conviction. Ibid. These periods of time are not relaxable under Rule 1:3-4(c). State v. Edwards, 184 N.J. Super. 538, 541 (App. Div. 1982); State v. Sanducci, 167 N.J. Super. 503, 511 (App. Div.), certif. denied, 82 N.J. 263 (1979); State v. Tully, 148 N.J. Super. 558, 562 (App. Div.), certif. denied, 75 N.J 9 (1977). As a consequence, defendant's application was properly denied.

Defendant contends that his motion was timely under two subsections to Rule 3:21-10(b), which provide:

A motion may be filed and an order may be entered at any time . . . (5) correcting a sentence not authorized by law including the Code of Criminal Justice, or . . . (7) changing or reducing a sentence when a prior conviction has been reversed on appeal or vacated by collateral attack.

 

[R. 3:21-10(b)(5), (7).]

 

Defendant does concede that his sentence is not per se illegal. However, he urges that there are "compelling reasons why the New Jersey sentence should be ordered to run concurrent[ly] with [the] sentence imposed in North Carolina." These reasons include that he pled guilty in North Carolina on the understanding that the sentence would be concurrent to the sentence under appeal in New Jersey. That expectation was defeated when he was transferred from New Jersey to North Carolina and the new sentence in New Jersey was ordered to run consecutively. He contends that, had he remained in New Jersey and immediately begun serving his sentence, the North Carolina sentence would have run concurrently, as he expected. He points out that the prison system in North Carolina does not provide the type of legal assistance available in New Jersey prisons, which precluded him from filing a timely motion for a reduction or change of sentence.

Defendant's somewhat confusing argument is not persuasive. As he admits, the sentence was not illegal and, thus, Rule 3:21-10(b)(5) does not afford him a safe haven from his out-of-time motion for a reduction or change of sentence. As to the other exception, defendant does not explain how it applies to the facts before us nor do we conceive of such applications, although it might apply if the North Carolina conviction had been vacated and that conviction had been considered in imposing sentence for the second time in New Jersey. As a result, defendant's reliance on the exceptions to the strict time limitations on a motion to reduce or change a sentence is untenable. The judge correctly refused to consider defendant's application under Rule 3:21-10.

Nonetheless, that is not the end of the inquiry as we must inquire whether the motion ought to have been considered as a motion for post-conviction relief, which is governed by Rule 3:22, which provides:

A petition for post-conviction relief is cognizable if based upon any of the following grounds:

 

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

 

. . . .

(c) An imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law if raised together with other grounds cognizable under paragraph (a), (b), or (d) of this rule. . . .

 

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

 

[R. 3:22-2(a), (c)-(d).]

 

We need not determine, and we do not determine, whether defendant's motion is cognizable under this rule. We only assume that it is for purposes of this opinion. Post-conviction relief with respect to the consecutive term imposed is clearly barred by Rule 3:22-5, which provides that "a prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule."

This rule requires that we determine whether the issues raised in defendant's motion are either identical or substantially equivalent to the issues raised on direct appeal. State v. Marshall, 173 N.J. 343, 351 (2002). Here, the issue is identical. In his direct appeal, defendant contended that the consecutive element of the sentence violated the double jeopardy clause and principles of comity because it increased his total sentence from the 1991 sentence, which was subsequently reversed. Muscio, supra, slip op. at 27. Accordingly, defendant was not entitled to post-conviction relief, and his motion was properly denied.

Affirmed.

1 We assume that the bracketed material is a reference to comment 7.3 to the rule. Pressler & Verniero, Current N.J. Court Rules, comment 7.3 on R. 3:21-4 (2011).

2 We granted defendant's motion to proceed without this transcript. As a consequence, we do not have the judge's decision before us.