STATE OF NEW JERSEY v. DARRYL DAVIS

NOT FOR PUBLICATION WITHOUT THE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-2681-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DARRYL DAVIS,

     Defendant-Appellant.
_________________________

                    Submitted September 10, 2019 – Decided November 14, 2019

                    Before Judges Yannotti and Hoffman.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 91-01-0061.

                    Ferro and Ferro, attorneys for appellant (Nancy C.
                    Ferro, on the briefs).

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Scott Joseph Gershman, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Darryl Davis appeals from a November 14, 2017 Law Division

order denying his motion to correct an allegedly illegal sentence. We affirm.

      This case arises from the July 1987 murder and robbery of Gamal Sledge

in Newark. Defendant bludgeoned Sledge with a barbell in Sledge's apartment

and left him to die. In 1992, a jury found defendant guilty of first -degree

murder, first-degree felony murder, first-degree robbery, and third-degree theft.

The State moved for the imposition of a discretionary extended term, which the

trial court denied (when defendant was sentenced in 1992, murder was not a

crime for which the court could impose an extended term). On the first-degree

murder count, defendant received a custodial term of life, with a thirty -year

period of parole ineligibility, and on the first-degree robbery count, the court

sentenced defendant to a consecutive custodial term of twenty years, with a ten-

year period of parole ineligibility. The remaining two counts merged.

      We affirmed defendant's conviction and sentence on direct appeal. State

v. Davis, No. A-3430-92 (App. Div. July 5, 1995). Thereafter, the trial court

denied defendant's petition for post-conviction relief (PCR). We affirmed the

denial of PCR. State v. Davis, No. A-3527-99 (App. Div. May 1, 2001). The

Supreme Court thereafter denied defendant's petition for certification. State v.

Davis,  169 N.J. 610 (2001).


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      In August 2016, defendant filed a "motion to correct illegal sentence." At

sentencing, the trial judge denied the State's motion for an extended term

"because the sentence will adequately punish the defendant and it will

adequately protect society from the defendant, and there are other reasons I

prefer not to express, but basically I don't think it is necessary and I don't think

it is appropriate."   Defendant argued that the sentencing judge improperly

withheld the "other reasons" he preferred "not to express," while at the same

time imposing a de facto extended term.

      Judge Timothy P. Lydon denied defendant's motion, concluding that

defendant's claim was already rejected on direct appeal:

            Defendant's appeal alleged that the trial court imposed
            an excessive sentence.        The Appellate Division
            addressed his claim and concluded that the trial court
            properly addressed its discretion to impose the
            consecutive sentence. It found that the overall sentence
            reflected the extent of defendant's record and the
            viciousness of the crimes for which he was sentenced.

Because this court previously considered the same arguments raised in

defendant's motion to correct his sentence, and "determined that his claims

lacked merit," Judge Lydon denied defendant's motion, citing State v. McQuaid,

 147 N.J. 464, 484 (1997) ("A prior adjudication on the merits ordinarily




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constitutes a procedural bar to the reassertion of the same ground as a basis for

post-conviction review.")

      Judge Lydon further noted that the Supreme Court previously addressed

the same excessive sentencing claim as presented in defendant's motion in State

v. Acevedo,  205 N.J. 40, 45 (2011). In that case, the defendant argued he

received an illegal sentence because the sentencing judge failed to provide a

statement of reasons for imposing a consecutive sentence. Id. at 42. As Judge

Lydon explained, the Court in Acevedo held that "a motion to correct an illegal

sentence 'do[es] not bestow upon a reviewing court the right to either amend or

modify consecutive sentences . . . because the reasons for imposition of

consecutive sentences were not stated.'"

      This appeal followed, with defendant presenting the following argument:

            THE COURT BELOW ERRED IN AFFIRMING THE
            SENTENCING JUDGE'S DECISION IN WHICH THE
            COURT STATED THAT CERTAIN REASONS
            WOULD NOT BE EXPRESSED.

      We find no merit in this argument and affirm substantially for the reasons

stated by Judge Lydon in his cogent written opinion. We add the following

comments.

      "[A] truly 'illegal' sentence can be corrected 'at any time.'" Acevedo,  205 N.J. at 47 n.4 (2011) (quoting R. 3:21-10(b)(5); R. 3:22-12). "[A]n illegal

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sentence is one that 'exceeds the maximum penalty provided in the Code for a

particular offense' or a sentence 'not imposed in accordance with law.'" Id. at 45

(quoting State v. Murray,  162 N.J. 240, 247 (2000)). A sentence "not imposed

in accordance with law" includes a "disposition [not] authorized by the Code."

Murray,  162 N.J. at 247. However, "mere excessiveness of sentence otherwise

within authorized limits, as distinct from illegality by reason of being beyond or

not in accordance with legal authorization, is not an appropriate ground of post-

conviction relief and can only be raised on direct appeal from the conviction."

State v. Clark,  65 N.J. 426, 437 (1974).

      As Judge Lydon noted, this court previously rejected defendant's claim

that his sentence was excessive. Moreover, the sentencing judge did not impose

an extended-term sentence, as defendant claims. The judge imposed the legally-

authorized sentence for murder and also imposed the legally-authorized

consecutive sentence for the separate robbery conviction.

      Affirm.




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