STATE OF NEW JERSEY v. EARL DOYLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1833-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL DOYLE a/k/a EARL C.

AMIN,

Defendant-Appellant.

________________________________________________________________

November 16, 2010

Argued October 25, 2010 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 81-333.

Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro, on the brief).

Matthew M. Bingham, Assistant Prosecutor, argued the cause for respondent (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Mr. Bingham, of counsel and on the brief).

PER CURIAM

Defendant appeals from the December 7, 2009 order denying his motion to correct an illegal sentence. We affirm.

After a jury trial, defendant was sentenced on December 13, 1982 on the eight counts of the indictment for which he was convicted. He received an extended term of life imprisonment with a twenty-five year parole disqualifier for armed robbery and a consecutive seven years imprisonment with a three-year parole disqualifier for attempted escape. Concurrent terms were imposed on the remaining counts.

In his direct appeal, defendant raised as one of many arguments that "the sentence imposed was manifestly excessive and unduly punitive and so disproportionate to that imposed upon the co-defendant that it must be modified." We rejected that argument and all of the others defendant presented and affirmed his conviction and sentence. State v. Doyle, No. A-1933-82 (App. Div. July 12, 1984). Defendant's sentence and our direct appeal opinion predated the seminal decision of our State Supreme Court dealing with consecutive sentences, State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

In 2001, defendant filed a motion to correct an illegal sentence, which the trial court denied by order of October 5, 2001. The court dealt with defendant's assertion that he should not have received consecutive sentences. It reasoned that defendant's "two offenses do not qualify as 'closely related' . . . to warrant those sentences to be served concurrently." Defendant appealed, and the matter was placed on our excessive sentence oral argument calendar pursuant to Rule 2:9-11. We affirmed for the reasons stated by the trial judge. State v. Doyle, No. A-1226-01 (App. Div. September 30, 2004).

On November 10, 2005, defendant filed another motion alleging an illegal sentence, contending that his arguments should be considered as within the direct appeal pipeline under State v. Natale, 184 N.J. 458 (2005). By order of November 10, 2005, the trial court rejected defendant's argument and denied the motion. We affirmed, noting that "[d]efendant's motion to correct an illegal sentence (premised on the fact the sentence was made consecutive) was denied on October 5, 2001, four years before Natale was decided." State v. Amin1, No. A-1364-06 (App. Div. June 13, 2008) (slip op. at 2).

Defendant then filed the motion to correct an illegal sentence, dated August 3, 2009, which is the subject of this appeal. On December 7, 2009, Judge Geiger issued a comprehensive written decision. He rejected defendant's arguments as procedurally barred under Rules 3:22-4 and -5, time-barred under Rule 3:22-12, and substantively lacking in merit. Essentially, the judge found that defendant's arguments did not truly pertain to an illegal sentence, but were nothing more than a reiteration of excessive sentencing arguments that had been raised and rejected in numerous prior proceedings.

We agree. An illegal sentence is one that is not authorized by the Code of Criminal Justice or court rules, or which exceeds the maximum penalty provided for the offense, or which was not imposed in accordance with law. State v. Murray, 162 N.J. 240, 246-47 (2000); State v. Chambers, 377 N.J. Super. 365, 370 (App. Div. 2005). It is plain to us that defendant's arguments on this motion and the appeal now before us pertain to excessive sentencing, not an illegal sentence.

We affirm substantially for the reasons expressed by Judge Geiger in his December 7, 2009 written decision. Defendant's appellate arguments do not warrant further discussion. R. 2:11-3(e)(2).

1 In this proceeding defendant used the name by which he is also known, "Earl Amin."