July 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEVEN PRATT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. 85-04-0520-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2008
Before Judges Wefing and Collester.
Defendant appeals from a trial court order denying his motion to correct his sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In 1986, a jury convicted defendant of murder. Defendant was fifteen years old at the time of the offense, and jurisdiction to try him as a juvenile was waived. R. 5:22-1. The trial court thereafter sentenced defendant to a term of thirty years in prison, thirty of which had to be served before defendant would be considered eligible for parole. N.J.S.A. 2C:11-3(b)(1). This court affirmed defendant's conviction and sentence, as well as the denial of defendant's two earlier petitions for post-conviction relief.
In May 2007 defendant filed a motion with the trial court in which he sought to correct his sentence as having been illegally imposed. The trial court denied his motion on the papers, without assigning counsel and without conducting argument. This appeal followed.
Defendant raises three arguments on appeal:
DID THE LAW DIVISION VIOLATED THE APPELLANT DUE PROCESS RIGHTS ON HIS MOTION TO CORRECT ILLEGAL SENTENCE BY NOT MAKING A REQUISITE "GOOD CAUSE" SHOWING FOR APPOINTMENT OF COUNSEL AND DISMISS MOTION WITHOUT A HEARING? CONTRARY TO N.J. CONST., ART. I. PAR. I AND 10, AS WELL AS R. 3:22-12(a)
IS APPELLANT SENTENCE UNDER THE STATUTE IMPROPERLY BALANCE AND NOT UNIFORMITY BY THE MANDATORY REQUIREMENT WHEN IT IS NOT USE AGAINST EVERYONE EQUALLY, MAKES THE SENTENCE ILLEGAL AND UNCONSTITUTION [sic] UNDER LAW, CONTRARY TO N.J. CONST., ART. I, PAR. I, AND IN VIOLATION OF THE EQUAL PROTECTION CLAUSES?
APPELLANT CONTENDS IF FACTORS IS ONE UPON WHICH SENTENCING GUIDELINE AND LEGISLATIVE ENCOURAGES DEPARTURE TO DOWNGRADE IT SHOULD BE CONSIDERED, WHEN THE FACTOR IS PRESENT TO AN EXCEPTIONAL DEGREE OR IN SOME OTHER WAY MAKES THE CASE DIFFERENT FROM THE ORIGINAL SENTENCE WHERE THE FACTOR IS PRESENT, DOWNWARD DEPARTURE IS WARRANTED.
We reject defendant's argument that the matter should be returned to the trial court to consider whether defendant was entitled in the first instance to have counsel assigned to represent him in connection with his motion. Rule 3:22-6 provides that a defendant is entitled to receive representation from the Office of the Public Defender in connection with the defendant's first petition for post-conviction relief. Subsection (b) states that in the case of any subsequent petitions, the matter shall be referred to the Office of the Public Defendant only upon a "showing of good cause."
Although the trial court in its letter opinion did not specifically address the question of good cause, it is apparent from the letter opinion as a whole that the trial court was satisfied that there was not good cause to refer the matter to the Office of the Public Defender. We are satisfied that the trial court's determination is this regard was entirely correct.
Defendant, having been convicted of murder, could receive only the sentence mandated by N.J.S.A. 2C:11-3(b)(1). "[T]he murder statute establishes a discrete sentencing scheme which deviates substantially from the sentencing options applicable to first degree crimes." State v. Manzie, 335 N.J. Super. 267, 271 (App. Div. 2000), aff'd, 168 N.J. 113 (2001). "Murder . . . is unique . . . . The court may sentence a convicted murderer to a term in excess of thirty years and up to life imprisonment, but thirty years of that sentence must be served before parole eligibility." Id. at 271-72. The fixed nature of a sentence for murder mandates that it may not be reduced by commutation and work credits available to defendants convicted of different offenses. Merola v. Department of Corrections, 285 N.J. Super. 501, 509-12 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996).
Accordingly, defendant's assertions that the sentencing court failed to take into account various downward adjustments which defendant asserts would have resulted in a lesser sentence lack legal merit. The sentencing court was powerless to employ such techniques at the time of sentencing.
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