May 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARRIN BIVINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-04-1750.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2008
Before Judges Lintner and Alvarez.
Defendant, Darrin Bivins, appeals pro se from the denial of a petition for post-conviction (PCR) relief without evidentiary hearing. For the reasons that follow, we affirm.
On December 20, 1991, defendant was sentenced to a mandatory extended term of life imprisonment with twenty-five years of parole ineligibility, after a jury convicted him of first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). When sentenced, defendant had a criminal history consisting of two fourth-degree burglaries,*fn1 fourth-degree receiving stolen property, third-degree aggravated assault, fourth-degree aggravated assault (pointing), and third-degree unlawful possession of a gun.*fn2 The sentencing court appears to have mistaken defendant's conviction for fourth-degree receiving stolen property with a robbery conviction in his sentencing decision, whether because of an outright error on the criminal history included in the pre-sentence report, or because the court misread the history. This is either defendant's third or fourth PCR petition.
By characterizing the PCR petition as an application to correct illegal sentence, defendant hopes to sidestep the five-year time bar of Rule 3:22-12(a). Only the legality of a sentence, not its excessiveness, may be challenged by way of PCR. State v. Levine, 253 N.J. Super. 149, 154 (App. Div. 1992). In contrast, illegal sentences may be corrected at any time. State v. Murray, 162 N.J. 240, 247 (2000). Therefore by contending his sentence was illegal, defendant is attempting to fall within a well-established exception to the five-year limit.
An illegal sentence is one which exceeds the penalties authorized by statute for a specific offense. Id. at 246 (citing Clark, supra, 65 N.J. at 435-37). Illegal sentences also include those not imposed in accordance with law. Id. at 247. As the PCR judge correctly pointed out, defendant was eligible for sentencing to an extended term of life, subject to twenty-five years of parole ineligibility, even if the robbery conviction is removed from the sentencing judge's calculation. See N.J.S.A. 2C:44-3(a). Pursuant to the statute, defendant was eligible for discretionary extended term sentencing as a persistent offender because he had "been previously convicted on at least two separate occasions of two crimes, committed at different times." N.J.S.A. 2C:44-3(a). In other words, although the judge erroneously characterized defendant's record, he correctly applied the statute because the number of offenses necessary for imposition of an extended term sentence were present. A person found to be eligible for an extended term on a first-degree offense, shall be sentenced to a term between twenty years and life. N.J.S.A. 2C:43-7(a)(2).
The sentence imposed was therefore a legal sentence, even without reaching the State's contention that as a Graves Act offender defendant was separately subject to a mandatory extended term. N.J.S.A. 2C:43-6(c); N.J.S.A. 2C:44-3(d). The five-year time bar is applicable and the denial of defendant's petition is accordingly affirmed.