February 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT RAY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 781-82-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2007
Before Judges Skillman and Holston, Jr.
Defendant, Vincent Ray, appeals the Law Division's August 30, 2005 opinion and order dismissing his post-conviction relief (PCR) petition.
Defendant was found guilty by a jury on October 3, 1983, of being an accomplice to the murder of Michael Searles in violation of N.J.S.A. 2C:2-6 and N.J.S.A. 2C:11-3; second-degree aggravated assault by shooting John Frazier in violation of N.J.S.A. 2C:12-1(b)(1); and third-degree unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5(b).
On November 18, 1983, defendant was sentenced to life imprisonment with thirty-years parole ineligibility on the accomplice to murder charge, a concurrent term of ten years imprisonment on the aggravated assault charge and a concurrent term of five-years imprisonment on the unlawful possession of a handgun charge.
On June 30, 1988, this court affirmed defendant's convictions for accomplice to murder and aggravated assault but reversed defendant's weapons conviction. In addition, we remanded for resentencing on the accomplice to murder conviction. State v. Ray, No. A-2066-83T4, certif. denied, 114 N.J. 291 (1988). On December 16, 1988, defendant was resentenced to a term of thirty-years imprisonment with thirty-years of parole ineligibility.
On August 14, 2002, defendant filed his first petition for PCR pro se. Defendant was not assigned counsel by the public defender until 2004. In his application for PCR, defendant alleged that his sentence was illegal, because he had been unconstitutionally denied work credits and commutation credits for the time that he had been imprisoned.
Defendant's counsel raises the following arguments for our consideration:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S SENTENCE IS ILLEGAL;
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIM IS NOT PROCEDURALLY BARRED UNDER R. 3:22-4;
THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIM;
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED; and
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIM.
Defendant pro se, makes the following argument:
DEFENDANT'S SENTENCE IS ILLEGAL, WITHIN THE PURVIEW OF RULE 3:22-12, IN THAT THE STATUTE UPON WHICH IT IS BASED IS UNCONSTITUTIONAL.
Our review of the record in the light of the written argument advanced by defendants' counsel and defendant pro se disclose that these contentions are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by Judge Cook in his written opinion of August 30, 2005. We add the following.
Rule 3:22-2(c) makes cognizable as a ground for PCR that the "imposition of sentence [is] in excess of or otherwise not in accordance with the sentence authorized by law." Defendant claims that his sentence is illegal based upon three constitutional grounds: (1) equal protection; (2) due process, and (3) the constitutional proscription against ex post facto laws. See U.S. Const. Art. I, § 9, cl. 3. Defendant contends he has been constitutionally deprived of his commutation credits and work credits, which, if granted, would reduce his prison sentence for accomplice to murder.
Judge Cook correctly rejected defendant's substantive claim finding that this court's opinion in Merola v. Department of Corrections, 285 N.J. Super. 501, 513-14 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996), clearly determined that there is no constitutional right under the Due Process or Equal Protection Clauses to a reduction of a mandatory minimum sentence for accomplice to murder by commutation time or work credits. Judge Cook also noted that State v. Davis, 175 N.J. Super. 130, 145-46 (App. Div.), certif. denied, 85 N.J. 136 (1980), decided three years before defendant's conviction, found that the denial of work or commutation credits did not violate the constitutional prohibition against ex post facto laws.
Further, our recent opinion in State v. Webster, 383 N.J. Super. 432, 436 (App. Div.) certif. granted, 188 N.J. 358 (2006) reiterated our rejection, in Merola and Davis, of the constitutional challenge asserted by defendant here. We reaffirmed that there is no constitutionally protected liberty interest under the Due Process Clause of the Fourteenth Amendment in the reduction of a first-degree murder sentence by application of commutation and work credits. Ibid; see also Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2974, 41 L.Ed. 2d 935, 951 (1974). Because there is no constitutional right to the use of such credits to reduce defendant's sentence, we are satisfied that Judge Cook correctly determined that defendant's sentence was not illegal.
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