STATE OF NEW JERSEY v. JOHN MC GILL

NOT FOR PUBLICATION WITHOUT THE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.

JOHN MC GILL,

Defendant-Appellant.

____________________________________

November 21, 2014

Submitted August 6, 2014 Decided

Before Judges Waugh and Accurso.

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

Nos. 380-81-M and 368-81-M.

John McGill, appellant pro se.

Gregory D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John McGill appeals from the denial of his fourth petition for post-conviction relief, this one styled as a motion to correct an illegal sentence. We affirm.

Defendant was convicted by a jury in 1983 of first-degree murder. The State's motion for an extended term based on defendant's status as a persistent offender, N.J.S.A. 2C:44-3, was granted, and he was sentenced to a term of life imprisonment subject to a twenty-five year parole ineligibility period. That sentence was made to run consecutive to an aggregate six-and-one-half year term imposed on unrelated convictions following defendant's guilty pleas to charges of theft, forgery and uttering forged checks. We affirmed defendant's conviction and sentence on direct appeal, State v. McGill, No. A-1910-83 (App. Div. June 5, 1986), and the Supreme Court denied defendant's petition for certification, State v. McGill, 105 N.J. 539 (1986).

Defendant's first petition for post-conviction relief was filed in August 1989 and denied by order entered on November 1, 1989. We affirmed that denial, State v. McGill, No. A-2341-89 (App. Div. Sept. 24, 1990), and the Supreme Court denied certification, State v. McGill, 127 N.J. 323 (1990).

Thereafter defendant unsuccessfully sought relief by way of a petition for habeas corpus filed in the federal district court, McGill v. Arvonio, No. 93-2751 (D.N.J. Sept. 21, 1993), and the Third Circuit affirmed the denial, McGill v. Arvonio, No. 93-5645 (3d Cir. Mar. 21, 1994).

His second post-conviction petition was filed in August 2000 and denied by order entered in May 2001. We affirmed the denial, State v. McGill, No. A-5755-00 (App. Div. Oct. 8, 2002), and the Supreme Court denied certification, State v. McGill, 175 N.J. 550 (2003).

Defendant filed his third petition for post-conviction relief in September 2005, followed by a motion for a new trial. The applications were heard together and denied in June 2007. We affirmed, State v. McGill, No. A-5980-06 (App. Div. Sept. 19, 2008), and the Supreme Court denied certification, State v. McGill, 198 N.J. 311 (2009).

Defendant filed the present application to correct an illegal sentence on December 26, 2012. Defendant sought to amend his judgment of conviction to reflect 322 days of gap time credit he was awarded in 2002; he also sought to have the 205 days of jail time previously applied to his life sentence credited against his six-and-one-half year term; to merge his conviction for third-degree theft by deception with the fourth-degree counts of uttering a forged instrument and to vacate the sentence on the third-degree conviction; to correct the award of $1895 in restitution paid to the Somerset Trust Company because that institution no longer exists; to vacate his extended-term sentence because of ineffective assistance of counsel in connection with defendant's 1976 convictions for burglary, breaking and entering, larceny and possession of a controlled dangerous substance and his 1977 convictions for robbery and armed robbery, which were deemed admissible pursuant to N.J.S.A. 2C:81-12 if defendant testified at his murder trial and used to qualify defendant for an extended term as a persistent offender; to declare information defendant relies on to support vacation of his extended-term sentence as newly discovered evidence; and to vacate his extended-term sentence on the basis of the Ex Post Facto Clauses of the federal and state constitutions. The Law Division denied defendant's motion by order of January 15, 2013. This appeal followed.

Having reviewed the record and considered the issues raised on appeal, we conclude that all but correction of the judgment of conviction to reflect the 322 days' gap time credit ordered on May 24, 2002, are utterly without merit. R. 2:11-3(e)(2). We add the following only for purposes of illustrating the point.

Defendant's sentence is not illegal for failure to apply the 205 days' jail credit he received against the life sentence to his six-and-one-half year term because the case on which defendant relies, State v. Hernandez, 208 N.J. 24, 51 (2011), provided for prospective application with only limited pipeline retroactivity for "those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 50-51. Regarding defendant's bargained for six-and-one-half year term, even assuming that defendant's convictions for fourth-degree uttering a forged instrument should have merged with his third-degree conviction for theft by deception, see State v. Streater, 233 N.J. Super. 537, 544 (App. Div.), certif. denied, 117 N.J. 667 (1989), defendant's sentence is not affected because the forgery convictions do not merge, see State v. Reed, 183 N.J. Super. 184, 189-91, 195 (App. Div.), certif. denied, 91 N.J. 228 (1982), and thus his aggregate sentence remains the same. Prison records show that defendant's restitution was paid many years ago. That the bank's successor no longer has records of such payments due to the passage of time does not give rise to any inference that those funds were misdirected.

Defendant's claims that his extended-term sentence should be vacated based on ineffective assistance in connection with the underlying convictions are a rehash of those raised and rejected in his second post-conviction petition. See State v. McGill, No. A-5755-00 (App. Div. Oct. 8, 2002) slip op. at 2-5. That defendant has only recently learned that his counsel on those underlying convictions was subsequently suspended from practice for an isolated defalcation of $700 from the estate of a former client does not qualify the information as "newly discovered evidence." See State v. Carter, 85 N.J. 300, 314 (1981). The information is, in any event, completely irrelevant. Finally, defendant conceded on direct appeal that he qualified for an extended term as a persistent offender. State v. McGill, No. A-1910-83 (App. Div. June 5, 1986), slip op. at 4-5. Because recidivist statutes that enhance the punishment for repeat offenders do not raise ex post facto concerns, State v. Oliver, 162 N.J. 580, 587 (2000), defendant's argument that his sentence violated the Ex Post Facto Clauses of the federal and state constitutions is rejected.

We affirm the denial of defendant's motion to correct an illegal sentence and remand for correction of the judgment of conviction to reflect the award of gap time credit contained in the Law Division's order of May 24, 2002.

Affirmed and remanded for correction of the judgment of conviction in accordance with this opinion. We do not retain jurisdiction.