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State v. Ellis

January 22, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT
v.
DERRICK ELLIS, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 89-06-2804.

Before Judges Ciancia, Lesemann and Parrillo.

The opinion of the court was delivered by: Ciancia, J.A.D.

As amended January 25, 2002, and February 2, 2002.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT
v.
DERRICK ELLIS, DEFENDANT-APPELLANT

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 89-06-2804.

Peter A. Garcia, Acting Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). John J. Farmer, Jr., Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief). John J. Farmer, Jr., Attorney General, attorney for amicus curiae New Jersey State Parole Board (Michael J. Haas, Assistant Attorney General, of counsel; Gregory A. Spellmeyer, Deputy Attorney General, on the brief).

Before Judges Ciancia, Lesemann and Parrillo.

The opinion of the court was delivered by: Ciancia, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 10, 2001

The narrow question presented by this appeal from the denial of post-conviction relief is whether it is illegal for a sentencing judge to specify that the less restrictive sentence be served prior to the more restrictive sentence when consecutive sentences are imposed at the same time for dual convictions arising from a single trial. We hold that such a specification does not render the sentence illegal.

For present purposes, and to emphasize that defendant's contention must be limited to a claim of illegal sentence, the history of defendant's prosecution may be summarized as follows. In 1991 defendant was tried in Essex County on consolidated charges arising from acts committed in Bergen and Essex Counties. He was found guilty of multiple offenses which merged for purposes of sentencing into two first-degree robbery convictions. The robberies were committed about a month apart but on the same victim, a sixty-year-old woman. The violence employed against the victim was substantial.

On May 20, 1991, consecutive sentences were imposed on defendant, one of twenty years with a ten-year parole disqualifier, and the other of fifteen years "flat." The trial judge quite specifically and emphatically specified that the fifteen-year flat sentence was to be served first:

If this record is reviewed, I want the Appellate Division to know that the Court has purposely imposed the parole disqualifier on the Essex County indictment to run consecutive to the Bergen County indictment which in effect means the defendant will have to serve the Bergen County term, when he becomes eligible for parole on the Bergen County term, he will then commence serving his ten-year parole disqualifier on the Essex County term.

The judgment of conviction was equally explicit.

Defendant took a direct appeal to this court and the judgment of conviction was affirmed. State v. Ellis, No. A-1693-91T4 (App. Div. Feb. 18, 1993). The issues raised in that appeal included contentions that "aggravating and mitigating factors as well as defendant's prior criminal history were completely absent from the trial court's sentencing. . . ." and "the . . . imposition of a minimum period of parole ineligibility without balancing aggravating and mitigating factors was improper." In affirming the judgment of conviction we said, "[w]e are satisfied the trial judge properly analyzed the aggravating and mitigating factors in imposing sentence.

Contrary to defendant's contention the sentencing judge explicitly identified the applicable aggravating factors. . . ." We then listed those factors and characterized them as "an abundance of aggravating factors and no mitigating factors. . . ." (Slip op. at 7-8).

In 1996 defendant's first petition for post-conviction relief was denied by the trial court, and in 1999 we affirmed that denial. State v. Ellis, No. A-3157-96T4 (App. Div. Apr. 27, 1999). The Supreme Court granted certification and remanded to this court to consider an ineffective assistance of counsel contention concerning counsel's failure to request a hearing pursuant to State v. Gross, 121 N.J. 1 (1990). State v. Ellis, 165 N.J. 524 (2000). On remand, this court again affirmed the denial of defendant's post- conviction relief. State v. Ellis, No. A-3157-96T4 (App. Div. June 18, 2001). None of these appellate proceedings included a claim by defendant that his sentence was illegal by virtue of the sentencing judge's specification as to which of the consecutive terms must be served first.

In 1999, while other appellate proceedings were pending, defendant moved pursuant to R. 3:21-10(b) for a change of sentence, alleging for the first time that the trial court's specification of the order of sentences was illegal. The trial court ultimately treated the motion as a second petition for post-conviction relief and denied it on the merits. Defendant subsequently submitted a motion seeking entry into a drug rehabilitation program that was also denied. Those adjudications were appealed to this court and placed on the excessive sentence calendar. After hearing argument, we directed full briefing and placement of the appeal on the regular calendar.

The only issue now presented to us is that the sentencing court "abused its discretion" by ordering defendant to serve a flat term of fifteen years prior to serving a term of twenty years with a ten-year parole bar. As set out more fully later in this opinion, a claim that a sentence is an abuse of judicial discretion is not cognizable on a petition for post-conviction relief. State v. Clark, 65 N.J. 426, 436-437 (1974); State v. Flores, 228 N.J. Super. 586 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). Rather, we view defendant's contentions as properly before us as a claim of illegal sentence that may be made at any time. R. 3:22- 12. Because of the nature of this issue and its relationship to the determination of an initial parole eligibility date, we asked the State Parole Board, through the Attorney General, to submit an amicus brief. That brief has been most helpful in providing us with an understanding of the practical consequences of defendant's sentence and other information relating to the intricacies of establishing an initial parole date. We now summarize the consequences of defendant's sentence.

In essence, the trial court's direction that the less restrictive sentence be served prior to the more restrictive sentence results in an initial parole eligibility date approximately three years later than if the more restrictive sentence had been served first. The Parole Board explains its calculations as follows. Considering first the fifteen-year flat sentence imposed on May 20, 1991, defendant is entitled to jail, work and commutation credits that reduce the initial parole eligibility date from May 20, 1996, one-third of the sentence, to June 12, 1994. The Board then applies N.J.S.A. 30:4-123.51h, which states:

When an inmate is sentenced to more than one term of imprisonment, the primary parole eligibility terms calculated pursuant to this section shall be aggregated by the board for the purpose of determining the primary parole eligibility date . . . . The board shall ...


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