STATE OF NEW JERSEY v. RUMIEJAH UKAWABUTU

NOT FOR PUBLICATION WITHOUT THE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.

RUMIEJAH UKAWABUTU,

Defendant-Appellant.

September 2, 2015

Before Judges Kennedy and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-11-2844.

Rumiejah Ukawabutu, appellant pro se.

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

PER CURIAM

Defendant Rumiejah Ukawabutu appeals from a June 25, 2014 Law Division order denying his motion seeking to correct an illegal sentence. Defendant argues his amended sentence improperly included an eight-year period of discretionary parole ineligibility without explanation or support in the hearing transcript. For the reasons that follow, we affirm.

We discern the following facts from the limited record. In September 1998, defendant was found guilty of two counts of armed robbery. As a persistent offender, the court sentenced defendant to an extended sentence of life in prison. Under the No Early Release Act (NERA), N.J.S.A. 2C:43-7, the court included sixty-three years and nine months of parole ineligibility, which it determined based upon eighty-five percent of seventy-five years, the construed numerical value of a life sentence.

On January 17, 2003, after a hearing on a motion filed by defendant seeking post-conviction relief (PCR), the Law Division modified defendant's sentence, sua sponte. The court determined, due to a change in the law, NERA applied only to the twenty-year base term, and not the extended life sentence. The judge stated, simply, "I will . . . modify the sentence . . . to impose the NERA term only on the [twenty]-year base term, not on the extended term."

However, the amended judgment sentenced defendant to twenty-five years of parole ineligibility. The related order denying defendant's motion for PCR explained seventeen years was legally mandated under NERA, while the eight-year balance was "imposed discretionarily." The record before us includes no other explanation for the amended sentence.

In 2013, defendant filed a pro se motion to amend his sentence, and the Law Division denied the motion. Defendant then filed the motion under review in or about June 2014. The Law Division addressed the motion as one to correct an illegal sentence under Rule 3:21-10(b)(5), and denied the motion, concluding that the sentence was not illegal and noting that the PCR judge "stated ample reasons for imposing sentence . . . ."

This appeal followed, with defendant presenting the following argument

POINT I

THE APPELLANT'S SENTENCE ON COUNT (1) IS ILLEGAL BECAUSE THE [PCR COURT] NEVER IMPOSED A DISCRETIONARY PERIOD OF PAROLE INELIGIBILITY OF 25 YEARS WHEN [IT] MODIFIED THE PAROLE BAR ON THE APPELLANT'S LIFE SENTENCE AT THE APPELLANT'S HEARING ON HIS PETITION FOR POST CONVICTION RELIEF.

A sentence may be illegal because it exceeds the penalties authorized by statute, or was not imposed in accordance with law. N.J.S.A. 2C:43-2a; State v. Murray, 162 N.J. 240, 246-47 (2000), certif. denied, 172 N.J. 179. As illegality is an issue of law, we do not owe any special deference to the motion court's legal interpretation. State v. Schubert, 212 N.J. 295, 303-04 (2012).

A sentencing court must state the factual basis and reasoning underpinning the sentence imposed, R.3:21-4(g), and include such reasoning in the judgment of conviction. R.3:21-5. Nevertheless, the failure to set forth a factual basis or reasoning does not render a sentence illegal. State v. Acevedo, 205 N.J.40, 46-47 (2011). Accordingly, the failure to provide adequate explanation is not a cognizable ground for correction of an illegal sentence pursuant to Rule3:21-10(b)(5). Acevedo, supra, 205 N.J.at 47.

Here, twenty-five years of parole ineligibility was expressly authorized by N.J.S.A. 2C:43-7b. While the court's failure to explain the sentence violated Rules 3:21-4(g) and 3:21-5(b), defendant's remedy lay in a motion to amend or direct appeal. Defendant failed to timely file such a motion, R.3:21-10(a), or direct appeal, R.2:4-1, and the issue is now beyond our purview. Acevedo, supra, 205 N.J.at 47.

As the alleged defects in defendant's amended judgment of conviction are not cognizable in a Rule3:21-10(b)(5) motion to correct an illegal sentence, and as defendant did not file a direct appeal or a timely motion to amend his sentence, the Law Division correctly denied defendant's motion.

Affirmed.