STATE OF NEW JERSEY v. HASHONA CLARK

NOT FOR PUBLICATION WITHOUT THE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.

HASHONA CLARK,

Defendant-Appellant.

______________________________________

December 23, 2014

Submitted December 9, 2014 Decided

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 90-05-1489.

Hashona Clark, appellant pro se.

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

PER CURIAM

Defendant Hashona Clark appeals from the denial of his motion to correct what he claims to be an illegal sentence. Because we agree that the sentence defendant is serving is not an illegal one, we affirm.

A jury convicted defendant in 1991 of conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; armed robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A. 2C:11-3(a)(3); purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1)&(2); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); and tampering with physical evidence, N.J.S.A. 2C:28-6(1). After merging defendant's convictions where appropriate, the judge sentenced defendant to life imprisonment with a thirty-year period of parole ineligibility on the murder conviction, a concurrent twenty-year term, with a twenty-year period of parole ineligibility on the armed robbery, and a consecutive eighteen-month term on the tampering conviction.

We affirmed defendant's convictions and sentence on direct appeal, State v. Hashona Clark, No. A-6271-90 (App. Div. March 11, 1994), rejecting, among other claims, defendant's contention that his sentence was excessive. The Supreme Court denied defendant's petition for certification, State v. Hashona Clark, 137 N.J. 166 (1994). In our opinion, we recounted the facts presented to the jury that defendant and his brother Raymond Clark, a/k/a Lakim So'Fine, robbed a jewelry store, Harry's Gold Exchange, and shot and killed the clerk, John Egan. We need not recount those facts here, except to note that Egan was disabled after being wounded by the first two or three shots fired. He was killed when the shooter moved to stand over him and fired two more shots into the back of his head and neck as he knelt on the ground. Defendant and his brother each claimed the other was the shooter. State v. Hashona Clark, No. A-6271-90 (App. Div. June 5, 1986) (slip op. at 4); State v. Raymond Clark,

A-4612-90 (App. Div. Feb. 9, 1993) (slip op. at 2-3).

Defendant has filed two prior petitions for post-conviction relief, one resulting in an evidentiary hearing, following our remand for that purpose, see State v. Hashona Clark, A-2865-03 (App. Div. Oct. 3, 2005), certif. denied, 186 N.J. 242 (2006); State v. Hashona Clark, A-0724-06 (App. Div. Dec. 21, 2007), certif. denied, 195 N.J. 519 (2008); and a federal petition for a writ of habeas corpus, Clark v. Ricci, No. 08-3347 (D.N.J. Aug. 27, 2009).

Having failed to obtain relief with regard to his convictions and sentence from any of those filings, defendant moved in the trial court in July 2013 for relief from an illegal sentence pursuant to Rule 3:21-10(b)(4)&(5). The court denied the motion on August 2, finding that defendant's sentence of a life term with a thirty-year period of parole ineligibility for purposeful or knowing murder, N.J.S.A. 2C:11-3a(1)&(2), was a legal sentence under the Code of Criminal Justice and lawfully imposed.

Defendant raises the following points on appeal.

POINT I

[Defendant] Was Subjected to Disparate Treatment at Sentencing for Murder, Which Subjected Him to Substantially [a] Harsher Sentence for Murder Than Other Defendants Who Were Similarly Situated at Sentencing, and Received Less Time for Murder Under Equivalent Circumstances and Situations, Despite Using the Aggravating and Mitigating Factors, Contrary To N.J.S.A. 2C:1-2(B)(4), N.J.S.A. 2C:11-3(B) And N.J.S.A. 2C:44-1(b).

POINT II

There is at Least One Mitigating Factor the Court Could Have Found at [Defendant's] Sentencing, But Failed to Consider, Pursuant to N.J.S.A. 2C:44-1(B)(4).

POINT III

[Defendant's] Sentence is Illegal Pursuant to Rule 3:22-12, and Based on N.J.S.A. 2C:11-3(1) Being Unconstitutional, in That it Allows For Unequal Treatment of Defendants Who Are Convicted and Sentenced For Murder, in Violation of the State and Federal Constitutions.

POINT IV

The Court Should Modify [Defendant's] Sentence For Economical Reasons, and Lack of Recidivism By Older Defendants Such as [Defendant] Charged With Murder.

Having reviewed the record and considered the issues raised on appeal, we conclude that all are utterly without merit and none requires extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant's claim is essentially the same one

we rejected on his direct appeal that his sentence is excessive. Reviewing defendant's sentence at that time, we found the judge's identification and balancing of the aggravating and (non-existing) mitigating factors supported the sentence and the parole ineligibility term imposed. State v. Hashona Clark, No. A-6271-90 (App. Div. March 11, 1994) (slip op. at 14). Defendant's invocation of Rule 3:21-10(b)(4) is improper because his crimes were committed after the effective date of the Code, and he was sentenced under the Code and not under pre-Code law. Finally, defendant has no claim of sentence disparity under State v. Roach, 146 N.J. 208 (1996), because his brother, who was also convicted of knowing and purposeful murder and armed robbery, received the same sentence defendant received. State v. Raymond Clark, A-4612-90 (App. Div. Feb. 9, 1993) (slip op. at 1-2).

Affirmed.