STATE OF NEW JERSEY v. ANTOINE ANDERSON

NOT FOR PUBLICATION WITHOUT THE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.

ANTOINE ANDERSON, a/k/a

ANTOIN ANDERSON,

Defendant-Appellant.

____________________________________

December 24, 2014

Submitted December 15, 2014 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 88-11-3683.

Antoine Anderson, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Antoine Anderson was convicted of murder, felony murder, first-degree armed robbery, and various weapons crimes after a jury trial in 1989. He was sentenced to life imprisonment with a thirty-year period of parole ineligibility, concurrently on both the murder and felony murder counts. His conviction was upheld on direct appeal in 1992. State v. Anderson, No. A-233-89 (App. Div. Dec. 2, 1992). The case was remanded to the trial court for resentencing, however, because we determined that the murder and the felony murder convictions should have merged for sentencing purposes, and that the armed robbery and the unlawful possession convictions should not have merged into the felony murder conviction. The Supreme Court denied certification. 133 N.J.436 (1993).

At resentencing in 1993, after the appropriate mergers, the trial court reimposed the life sentence with the thirty-year parole disqualifier on the murder count, with concurrent sentences on the armed robbery and unlawful possession counts.

Defendant's first request for post-conviction relief ("PCR"), which did not concern his sentence, was denied. That denial was affirmed on appeal in 1996. State v. Anderson, No. A-7061-94 (App. Div. Dec. 6, 1996). The Supreme Court denied certification. 149 N.J. 142 (1997).

Now self-represented, defendant moved before the trial court in January 2012 under Rule3:21-10(b)(5) for relief from his allegedly-illegal life sentence, claiming he is being treated disparately from other defendants who received a term-of-years sentence (instead of a life sentence) with a thirty-year parole disqualifier. His petition listed the names and docket numbers of several other defendants who he says have received such disparate sentences that are less stringent than his own.

In a letter opinion, Judge Alfonse J. Cifelli denied defendant's claim for relief and his related request for the appointment of counsel. The judge's letter noted that defendant's claim should have been raised in a new PCR petition rather than in a motion to correct an illegal sentence, because the sentence was not shown to be "in excess of the statutory maximum." The judge further instructed that, since defendant had circumvented the PCR application process, the court could not entertain his motion "until [defendant] can comply with this process and the requirements of [Rule] 3:22-2 and [Rule] 3:22-8."

On appeal of Judge Cifelli's determination, defendant relies on his brief in support of his motion to the trial court. That brief presents the following singular point

DEFENDANT'S SENTENCE OF 30 YEARS TO LIFE IMPRISONMENT IS ILLEGAL AND UNCONSTITUTIONAL, IN THAT IT ALLOWS FOR UNEQUAL TREATMENT AMONGST SIMILARLY SITUATED DEFENDANTS IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS[.]

We affirm the trial court's rejection of defendant's application, substantially for the reasons cited by Judge Cifelli. Defendant fails to show any error in the court's analysis of the Ruleprovisions and case law barring his present belated application to correct his life sentence, which wasimposed over twenty years ago. SeeR.3:21-10(b)(5) (authorizing motions to correct a sentence, but only insofar as the sentence is "not authorized by law including the Code of Criminal Justice"); R.3:22-2(a) and (c) (authorizing a PCR petition to challenge a sentence, if the claim of sentence illegality is coupled with, for example, an argument that defendant sustained a "[s]ubstantial denial in the conviction proceedings of [his] rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey"); see alsoState v. Acevedo, 205 N.J.40, 46 (2011) (distinguishing between "illegal" sentences that may be challenged in a PCR petition and "excessive" sentences that should be pursued on direct appeal).

Judge Cifelli also rightly faulted defendant for failing to comply with the pertinent Rulesgoverning PCR applications, including Rule3:22-8, which requires a movant to file such a petition in verified form, and which further requires certain details that were absent from defendant's unverified motion.

Affirmed.