STATE OF NEW JERSEY v. ALLEN TALLY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLEN TALLY,

Defendant-Appellant.

____________________________________

June 16, 2015

Submitted February 10, 2015 Decided

Before Judges Hayden and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No(s). 89-10-2812 and 89-10-2836.

Allen Talley, appellant pro se.

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was tried by a jury and found guilty of the following offenses from two separate indictments: conspiracy to commit robbery, N.J.S.A. 2C:5-2; six counts of robbery and armed robbery, N.J.S.A. 2C:15-1; four counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1)-(4); theft of the person, N.J.S.A. 2C:20-3; terroristic threats, N.J.S.A. 2C:12-3(b); possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a); possession of a weapon, N.J.S.A. 2C:39-5(b); and possession of weapon by a convicted person, N.J.S.A. 2C:39-7.

At sentencing, a merger was effected among the conspiracy conviction and each robbery conviction with the exception of one armed robbery conviction. The aggravated assault and theft convictions were also merged with the foregoing offenses except for one conviction for aggravated assault with a firearm. Defendant was sentenced as a persistent offender and given an extended term of imprisonment for life with twenty-five years of parole ineligibility on the merged robbery conviction. Lesser concurrent terms were ordered on the non-merged convictions.

In an unpublished decision, we rejected defendant's direct appeal with the exception of a remand to modify the judgment of conviction to reflect a merger of the terroristic threat conviction into the appropriate armed robbery conviction. Our Supreme Court denied his petition for certification. State v. Tally, No. A-005154-94 (App. Div. June 17, 1993), certif. denied, 134 N.J. 566 (1993).

Defendant's subsequent petition for post-conviction relief, dated October 25, 1994, was denied by the trial court and our court in unpublished decisions. Defendant's petition for certification was denied. State v. Tally, No. A-005753-94 (App. Div. February 28, 1997), certif. denied, 150 N.J. 25 (1997).

On December 10, 2012, defendant filed a pro se motion contending that his extended term sentence was illegal because the State did not file a motion to seek an extended term and there was no evidence to support an extended term. The motion was denied.

Defendant filed a pro se brief raising the following points on appeal

POINT I

DEFENDANT WAS DENIED DUE PROCESS AND EQUAL PROTECTION OF THE LAW BASED ON VIOLATION OF NEW JERSEY COURT [RULE] 3:21-4e IN THAT NO MOTION WAS EVER FILED SEEKING AN EXTENDED TERM BE IMPOSED ON THE DEFENDANT.

POINT II

DEFENDANT'S SENTENCE IS ILLEGAL DUE TO THE STATE['S] FAILURE TO PROVIDE THE EVIDENCE REQUIRED TO SUSTAIN THE IMPOSITION OF THE SENTENCE IN VIOLATION OF DEFENDANT'S 5TH, 6TH, AND 14TH AMENDMENT (2) [SIC].

POINT III

THE SENTENCING COURT ERRED IN APPLYING THE EXTENDED TERM ACT, PERSISTENT OFFENDER[,] SINCE THE COURT FAILED TO ENSURE THAT ALL THE REQUIREMENTS [WERE] FOLLOWED BEFORE DETERMINING WHETHER THE ACT WAS APPLICABLE AND THAT ALL REQUIREMENTS [WERE] MET.

POINT IV

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE PURSUANT TO [RULE] 3:21-10(b)(4)

POINT V

THE COURT DENIED THE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL SENTENCE ON INADEQUATE FACTUAL FINDINGS

Having reviewed defendant's arguments in light of the record and applicable law, we affirm.

We begin our analysis by setting forth some well-settled applicable principles regarding our review of a trial court's sentencing decision. We apply a deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We may not substitute our judgment for a sentencing court. State v. O'Donnell, 117 N.J. 210, 215 (1989). We may, however, correct an illegal sentence. See State v. Horton, 331 N.J. Super. 92, 97 (App. Div. 2000) (noting that appellate courts are granted such authority "even though there is no rule expressly authorizing [this]"). An illegal sentence may be corrected at any time so long as the sentence has not been completely served. State v. Schubert, 212 N.J. 295, 309 (2012). An illegal sentence is one that is contrary to the Code of Criminal Justice or constitutional principles. State v. Acevedo, 205 N.J. 40, 45 (2011); State v. Veney, 327 N.J. Super. 458, 462 (App. Div. 2000) (citing State v. Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989)).

The essence of defendant's five appeal points is that the State did not adhere to the procedural requirements to impose an extended custodial term, and that the court below erred in not recognizing these requirements. Defendant contends that his extended term sentence as a persistent offender under N.J.S.A. 2C:43-7 is illegal because a notice of motion to seek an extended term was not filed pursuant to Rule 3:21-4(e).1 The rule requires that a motion "for the imposition of an extended term of imprisonment . . . shall be filed with the court by the prosecutor within 14 days of . . . the return of verdict." R 3:21-4(e). The time for filing may be extended for good cause. Ibid.

On the record before us, we find no merit to defendant's contention that a notice of motion was not filed. The defendant's appendix attaches a copy of the State's notice of motion dated March 22, 1990, the date the jury returned its verdict, with a return date of April 12, 1990, defendant's sentencing date.2 The notice of motion, addressed to the county clerk's office, defendant and his counsel, provides that "the State will move to have defendant sentenced as a persistent offender pursuant to [N.J.S.A.] 2C:44-3a." The motion's caption also indicates that an extended term was sought under N.J.S.A. 2C:43-6f. Moreover, during defendant's sentencing, it was evident that defendant and his counsel were aware of the State's application, because neither indicated that the State had not given them prior written notification when the prosecutor asserted that the State moved for an extended term. The court likewise did not express any surprise by the prosecutor's motion.

In addition, defendant contends that the State failed to present the evidence of his prior convictions to support the claim that he was a persistent offender. Again, the record contradicts defendant's assertion. At defendant's sentencing, the prosecutor presented the judge with certified copies of eleven judgments of conviction (JOCs) against defendant. After the judge recited each conviction date and sentence, a brief colloquy occurred between the judge and defendant's counsel

The Court: Any other comment that counsel would like to make whether the defendant is a persistent offender within the meaning of the code?

Mr. Goodard: I'll leave it to the Court.

The Court: Based upon my review of the documents before me, exhibit S-1, I find that the defendant is a persistent offender.

Before us, defendant contends he did not receive the JOCs prior to his sentencing, and that the prosecutor prefaced her presentation of his criminal history by referencing a Sands3 hearing which the record does not disclose.4 However, defendant's reliance on the prosecutor's comments regarding the occurrence of a Sands hearing is misplaced. The fact remains that the State presented the certified copies of the convictions and the court found them credible and sufficient.

We see no reason to disagree with the court's factual findings. See Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)) (findings by the trial court "are binding on appeal when supported by adequate, substantial, credible evidence"). Further, there was no objection or indication at the sentencing that copies of the JOCs had not been given to the defense before the sentencing.

Lastly, defendant argues the motion judge misinterpreted Rule 3:21-4(e) by concluding that no formal notice of motion had to be filed to seek an extended term. Defendant also argues that the judge misinterpreted his motion as a claim for post-conviction relief (PCR) that should be dismissed because it was not filed within five years of his conviction. See R. 3:22-12. We agree with these assessments.

However, "we affirm or reverse judgments and orders, not reasons." State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002). Our ruling to affirm the decision below rejecting defendant's motion to correct his sentence is based upon the conclusion that the State filed a notice of motion for an extended term in accordance with the Rule. We do not view defendant's request as a PCR petition, but a motion to correct an illegal sentence which is timely as defendant is currently serving his sentence. Schubert, supra, 212 N.J. at 309.

Affirmed.

1 At the time of defendant's sentencing on April 12, 1990, this provision was designated Rule 3:21-4(d). Effective September 4, 1990, former paragraph (d) was re-designated paragraph (e) without any textual change. For ease of reference, we refer to the current rule, 3:21-4(e).

2

Although the notice of motion does not reflect a court filed date stamp, we are satisfied that the notice of motion was filed with the court as a copy of the notice was provided to defendant by the court pursuant to defendant's record request. The State's brief reveals that it could not locate defendant's files in its electronic or physical archives.

3 In accordance with State v. Sands, 76 N.J. 127, 147 (1978), a pre-trial hearing to determine the admissibility of defendant's prior convictions should he or she testify.

4

The same record request which produced the notice of motion revealed no record of a Sands hearing.