STATE OF NEW JERSEY v. CARLTON COLEMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5800-05T15800-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLTON COLEMAN,

Defendant-Appellant.

_____________________________________

 

Submitted May 8, 2007 - Decided May 29, 2007

Before Judges Weissbard and Payne.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment

No. 85-05-0517.

Carlton Coleman, appellant pro se.

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven Brizek, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Carlton Coleman, appeals from the denial of his "motion to correct an illegal sentence." R. 3:22-2(c) and

22-12(a). We affirm.

After a jury trial, defendant was convicted on all nineteen counts of an indictment charging burglary, three counts of armed robbery, four counts of aggravated assault, three counts of terroristic threats, conspiracy, attempted murder, and various weapons offenses. On November 19, 1985, defendant was sentenced to a series of consecutive and concurrent prison terms aggregating seventy-five years with thirty-six years of parole ineligibility. Part of that sentence consisted of consecutive prison terms for the armed robberies of three employees of a gas station. Defendant also received consecutive terms for offenses against the police officer who arrived at the scene of the robbery and was shot by defendant.

In an opinion filed September 28, 1987, we affirmed defendant's conviction but vacated his sentence and remanded for a new sentencing consistent with the views expressed in that opinion. Among the issues raised at that time was that the "consecutive sentences for multiple offenses arising out of a single occurrence were excessive and unconstitutional." We concluded that the trial judge failed to adhere to governing case law and failed to explain on the record his reasons for imposing "consecutive sentences and parole ineligibility terms on each of the separate sentences." Referencing State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), establishing guidelines for consecutive sentencing, and State v. Kruse, 105 N.J. 354 (1987), addressing parole ineligibility terms, we stated that the judge did not adhere to the mandates of those decisions. We noted that defendant's sentence was "well in excess of the suggested outer-limit" on consecutive sentences, as directed by Yarbough, supra, 100 N.J. at 644. All of defendant's crimes, we observed, "clearly were committed during a single period of aberrant behaviour, rather than at different times and places." Even assuming that the attempted murder of the police officer warranted separate consideration, we questioned the propriety of three consecutive terms on the armed robbery counts and the imposition of maximum parole ineligibility terms on two of those counts as to which presumptive fifteen-year terms were imposed.

As a result, we remanded for a new sentencing, which took place on November 6, 1987. The judge continued to run the armed robbery sentences consecutively, but reduced the terms on two of the counts to ten years with five years of parole ineligibility (instead of fifteen with seven as originally imposed). Because of these and other adjustments, defendant's aggregate sentence became fifty years with twenty-five years of parole ineligibility. Notably, in both the original sentence and resentence, the judge imposed the same term on the attempted murder of the police officer and continued to run that sentence consecutive to the armed robbery sentences. It does not appear that defendant ever appealed his resentencing, although the record suggests that the judge may still not have complied with our mandate.

In any event, on January 26, 2006, nearly twenty years after his resentencing, defendant filed a pro se motion to correct an illegal sentence, asserting that the attempted murder charge should have been merged into one of the armed robbery charges. Judge Subryan, who was not the sentencing (or resentencing) judge, denied defendant's application in a written opinion, without a hearing.

On this appeal, defendant, again appearing pro se, presents two arguments:

POINT ONE

ATTEMPTED ROBBERY IS A COGNIZABLE OFFENSE UNDER THE CRIMINAL CODE.

POINT TWO

WHERE A DEFENDANT HAS BEEN CONVICTED FOR CONTEMPORANEOUS SEPARATE OFFENSES WHICH ARE, IN FACT OR BY LEGISLATIVE INTENT INDISTINGUISHABLE, THEN RESULTING CONVICTIONS MUST MERGE.

Defendant's first issue does not appear to have been presented to the motion judge. More importantly, as defendant concedes, this very issue was raised on his direct appeal where we found it clearly without merit. On the second argument, we find ourselves in substantial agreement with the views expressed by Judge Subryan in his cogent and perceptive written opinion of June 19, 2006.

Affirmed.

 

Subsequently, by a 1993 amendment, N.J.S.A. 2C:44-5a eliminated the outer limit on consecutive sentences imposed by Yarbough. Defendant's sentence was, of course, governed by Yarbough, not the amended statute.

In his reply brief defendant contends that Point I "has been presented as a means of clarifying the issue of merger presented at Point Two." To the extent we understand his argument, we continue to reject it.

(continued)

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A-5800-05T1

May 29, 2007