STATE OF NEW JERSEY v. JAMELL L. CHINA

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5545-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JAMELL L. CHINA,

     Defendant-Appellant.
____________________________

              Submitted December 12, 2017 – Decided December 21, 2017

              Before Judges Yannotti and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              07-09-2161.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Alison Perrone, Designated
              Counsel, on the brief).

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (Nicole L. Campellone,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM
       Defendant Jamell L. China appeals from an order entered by

the Law Division on July 18, 2016, which denied his motion to

correct an allegedly illegal sentence. We affirm.

       Defendant was charged under Atlantic County Indictment No.

07-09-2161 with second-degree burglary, 
N.J.S.A. 2C:18-2 (count

one); second-degree robbery, 
N.J.S.A. 2C:15-1 (counts two and

five); second-degree kidnapping, 
N.J.S.A. 2C:13-1(b)(1) (counts

three and four); and first-degree carjacking, 
N.J.S.A. 2C:15-

2(a)(2) (count six).

       On April 30, 2010, defendant pled guilty to counts two, three,

and four. The State agreed to dismiss the remaining charges and

recommend sentences on each count of eight years of incarceration,

with   an   eighty-five   percent   period     of   parole   ineligibility,

pursuant to the No Early Release Act (NERA), 
N.J.S.A. 2C:43-7.2.

The sentences would be consecutive with each other, but concurrent

to a sentence defendant was then serving.

       On July 9, 2010, the trial court sentenced defendant in

accordance with the plea agreement, and entered a judgment of

conviction (JOC). The court awarded defendant eight days of jail

credits, pursuant to Rule 3:21-8, and 686 days of gap time credits

pursuant to 
N.J.S.A. 2C:44-5(b)(2). The court amended the JOC on

January     20,   2011,   to   include   the    NERA   period   of    parole



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ineligibility on count four, which apparently had been omitted

from the initial JOC.

       Defendant appealed the sentence, and the appeal was heard on

the court's Excessive Sentence Oral Argument Calendar pursuant to

Rule   2:9-11.    The     court   then   entered       an    order   affirming     the

sentence. State v. China, No. A-0847-10 (App. Div. Aug. 3, 2011).

       Thereafter,      defendant    filed      what   he    characterized        as   a

petition for post-conviction relief (PCR), in which he alleged

that the sentencing court had erroneously awarded him gap time as

opposed to jail credits. He sought to have all days from his arrest

on August 31, 2006, until his sentencing on July 8, 2010, awarded

as jail credits. Defendant asked the court to assign counsel to

represent him in the matter.

       On July 18, 2016, without appointing counsel or hearing oral

argument, the trial court denied defendant's petition, which it

deemed a motion to correct an illegal sentence rather than a PCR

petition. In its letter opinion, the court noted that defendant

was sentenced in Monmouth County on August 22, 2008, to twenty

years for an offense that occurred on June 24, 2006.

       The   court   pointed      out    that     thereafter,        defendant     was

sentenced on the Atlantic County charges to twenty-four years,

subject to an eighty-five percent period of parole ineligibility

pursuant     to   NERA.    The    Atlantic   County         sentence   was   to    run

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concurrently with the twenty-year Monmouth County sentence. The

court stated that defendant received gap time for the time between

the two sentences, from August 22, 2008, to July 8, 2010. The

court found that gap time had properly been applied pursuant to


N.J.S.A. 2C:44-5(b)(2), and denied the application.

       Defendant appeals, arguing that he was "deprived of his right

to counsel when the trial court dismissed his first petition for

[PCR] without assigning an attorney to represent him" in accordance

with    Rule   3:22-6(a).    He   asserts     that   counsel   was   needed    to

"investigate     and   argue"     the   sentencing     issue   raised   in    his

petition, as well as any other issues counsel deemed appropriate

after    reviewing     the   record.        Notably,   defendant     makes     no

substantive argument challenging the merits of the trial court's

decision.

       According to Rule 3:22-2(c), a petition for PCR seeking

correction of a sentence is cognizable only if it also includes

an additional claim on another cognizable ground. Otherwise, the

sentencing claim must be made in a motion to correct an illegal

sentence in accordance with Rule 3:21-10(b)(5). R. 3:22-2(c).

       Furthermore, Rule 3:21-10(c) provides that the trial court

need only hold a hearing on a motion to correct an illegal sentence

if required in the interests of justice. The court "may" assign



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counsel to represent the defendant where there has been a showing

of good cause. R. 3:21-10(c).

     Here, defendant's lone sentencing claim was not cognizable

as a first petition for PCR for which he would have been entitled

to assigned counsel under Rule 3:22-6(a). Thus, the trial court

did not err by treating defendant's petition as a motion to correct

an illegal sentence. Moreover, absent a showing of good cause,

which was not made here, defendant was not entitled to assigned

counsel in connection with this motion.

     Affirmed.




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