STATE OF NEW JERSEY v. STEVEN B. MCNEIL

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4170-17T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

STEVEN B. MCNEIL,

     Defendant-Appellant.
________________________

                   Submitted October 30, 2019 - Decided November 18, 2019

                   Before Judges Koblitz and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 02-06-
                   0929.

                   Steven B. McNeil, appellant pro se.

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Jennifer Bentzel Paszkiewicz,
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Steven B. McNeil appeals from the March 9, 2018 order

denying his post-conviction petition (PCR) to correct an illegal sentence. The

sentence was imposed more than thirteen years before he filed his motion. We

affirmed his conviction, State v. McNeil, No. A-3346-05 (App. Div. Dec. 13,

2007), and our Supreme Court denied his petition for certification, State v.

McNeil,  195 N.J. 422 (2008). Defendant's arguments are without merit and, after

de novo review, we affirm substantially for the reasons expressed by the court

in its March 9 letter opinion.

      Following a jury trial, defendant was found guilty of both third-degree

aggravated assault on a law enforcement officer,  N.J.S.A. 2C:12-1(b)(5)(a), and

second-degree eluding,  N.J.S.A. 2C:29-2(b).        In September 2005, he was

sentenced to an aggregate term of ten years in prison with a five-year period of

parole ineligibility, to be served consecutively to the sentences defendant was

then serving.

      On direct appeal, we determined that "[t]he sentence imposed by the trial

judge properly took into account the relevant aggravating and mitigating factors

under  N.J.S.A. 2C:44-1 and was well within the discretion of the sentencing judge."

McNeil, slip op. at 10.




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      The trial court denied defendant's motion to correct an illegal sentence on the

basis that it was procedurally barred under Rule 3:22-5. It explained that, because

we determined on direct appeal that defendant's consecutive sentence was not

excessive and not in violation of State v. Yarbough,  100 N.J. 627 (1985), and

because our Supreme Court denied certification, McNeil,  195 N.J. at 422, our

decision to affirm the conviction and sentence is dispositive.

      Defendant raises the following issue on appeal:

             POINT I:  THE TRIAL COURT ERRED BY
             CONSIDERING APPELLANT'S MOTION TO
             CORRECT HIS ILLEGAL SENTENCE UNDER THE
             PROCEDURAL BAR RULE.

      We apply a de novo standard of review and "give no deference to the legal

conclusions of the PCR court." State v. Harris,  181 N.J. 391, 415 (2004).

Defendant argues that the trial court erred as a matter of law by viewing his

motion to correct an illegal sentence under Rule 3:22-5, which governs motions

for post-conviction relief and procedurally bars this motion. Defendant argues

that he filed his motion pursuant to Rule 3:21-10(b)(5), which governs the

review of an illegal sentence, which can be heard at any time.

      Rule 3:22-5 states: "A prior adjudication upon the merits of any ground

for relief is conclusive whether made in the proceedings resulting in the



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conviction or in any post-conviction proceeding brought pursuant to this rule or

prior to the adoption thereof, or in any appeal taken from such proceedings."

      Rule 3:21-10(b)(5) provides that "[a] motion may be filed and an order

may be entered at any time . . . correcting a sentence not authorized by law

including the Code of Criminal Justice." Our Supreme Court has stated that "a

truly 'illegal' sentence can be corrected 'at any time.'" State v. Acevedo,  205 N.J. 40, 47 n.4 (2011) (quoting R. 3:21-10(b)(5)). "[A]n illegal 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)).

      Defendant does not provide any argument establishing that his

consecutive sentence was not authorized by law. Defendant's argument that the

trial court did not properly assess whether the sentence imposed should be

concurrent or consecutive to the sentence he was then serving was addressed in

our opinion on direct appeal.

      Affirmed.




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