STATE OF NEW JERSEY v. FRANCISCO VILLEGAS

NOT FOR PUBLICATION WITHOUT THE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-3503-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FRANCISCO VILLEGAS,

     Defendant-Appellant.
____________________________

                   Submitted October 2, 2019 – Decided November 19, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 93-02-0399.

                   Francisco Villegas, pro se appellant.

                   Jill S. Mayers, Acting Camden County Prosecutor,
                   attorney for respondent (Linda Anne Shashoua, Special
                   Deputy Attorney General/ Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      In 1995, a jury found defendant Francisco Villegas guilty of first-degree

murder and unlawful possession of a weapon. He was sentenced under  N.J.S.A.

2C:11-3(b)(1), to life in prison with a thirty-year period of parole ineligibility. 1

Almost twenty-three years later, he filed a motion to correct an illegal sentence.

      Judge John T. Kelley denied the motion on February 6, 2018. In a succinct

one-paragraph letter opinion, the judge found defendant's sentence was

consistent with  N.J.S.A. 2C:11-3(b)(1). The judge reasoned, "the statute does

include 'life imprisonment' as a lawful term within the applicable sentencing

range. In this situation, the word 'between' is inclusive, not exclusive, of the

end points of the range as understood by the New Jersey State Legislature."

      Defendant now appeals arguing:

             THE LAW DIVISION ERRED IN DENYING
             APPELLANT'S MOTION TO CORRECT AN
             ILLEGAL SENTENCE AS THE SENTENCE
             IMPOSED OF LIFE WITH A 30-YEAR PERIOD OF
             PAROLE INELIGIBLITY IN THIS INSTANCE IS
             NOT AUTHORIZED BY  N.J.S.A. 2C:11-3(b)(1) AND
             IS THEREFORE AN ILLEGAL SENTENCE.

                   a. The Plain Language Of A Statute Controls.

                   b. A Life Sentence Is Not Between 30 Years And
                   Life


1
  He also received a five-year prison term for unlawful possession of a weapon
to run consecutive to his life sentence.
                                                                             A-3503-17T4
                                         2
We disagree and affirm with only a brief discussion in this opinion because

defendant's argument is so lacking in merit. R. 2:11-3(e)(2).

       N.J.S.A. 2C:11-3(b)(1) states: "a person convicted of murder shall be

sentenced . . . to a specific term of years which shall be between [thirty] years

and life imprisonment of which the person shall serve [thirty] years before being

eligible for parole." The comment following adds: "[m]urder has always been a

crime of the first degree, and, as amended in 2007, the statute provides for only

three sentences: [thirty] years without parole; a specific term of years between

[thirty] years and life imprisonment, with [thirty] years required to be served

before the person is eligible for parole; and life imprisonment without parole."

Cannel, N.J. Criminal Code Annotated, cmt. 4 on  N.J.S.A. 2C:11-3 (2018); see

also State v. Scales,  231 N.J. Super. 336, 340 (App. Div. 1989) (holding that, as

the result of 1982 amendments to the Criminal Code, "three alternative sentences

for murder could be imposed: (1) death; (2) a sentence of 30 years without

parole; and (3) a sentence between thirty years and life, with a 30-year term of

parole ineligibility.").

      Defendant seems to be arguing that his sentence must be lower than a life

term, because the statute uses the term "between." That argument has no basis

in the law or in logic. Thirty years is a number. The sentence in this case is


                                                                         A-3503-17T4
                                       3
within the statutory range for first-degree murder and is therefore not illegal.

See State v. King,  372 N.J. Super. 227, 243-44 (App. Div. 2004).

       None of the cases defendant cites in his brief support a contrary result.

The "life" component of his sentence is lawful and did not require a numeric

designation of years. See Scales,  231 N.J. Super. at 340. (modifying a life

sentence with a forty-year parole disqualifier to a life sentence with a thirty-year

parole disqualifier); see also State v. Carroll,  242 N.J. Super. 549, 566, (App.

Div. 1990) (modifying a life sentence with a fifty-year parole disqualifier to a

life sentence with a thirty-year parole disqualifier). If defendant's argument is

that the upper range of life is unlawful—that argument too misapprehends the

law.   Life imprisonment is available as an ordinary sentence that may be

imposed for murder. King,  372 N.J. Super at 244. Because defendant's sentence

does not exceed the maximum penalty provided by the Code or include a

disposition that is not authorized by the Code, it is not an illegal sentence that

can be challenged after entry of the judgment of conviction. State v. Acevedo,

 205 N.J. 40, 45-47 (2011).

       Affirmed.




                                                                            A-3503-17T4
                                         4