On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 83-06-0773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Defendant Keith McNeil appeals from a November 7, 2008 order of the Law Division that denied his second petition for post-conviction relief (PCR), arguing that his plea agreement, entered into twenty-four years ago, was violated by the so-called retroactive cancellation of his accrued good time and commutation credits pursuant to Merola v. Dep't of Corrections, 285 N.J. Super. 501 (App. Div. 1995), certif. denied, 143 N.J. 519 (1996). We affirm.
By way of background, in November 1983, following plea negotiations, defendant pleaded guilty to felony murder, N.J.S.A. 2C:11-3a(3). In exchange for the guilty plea, the State recommended that other criminal charges be dismissed. The State, however, made no recommendation with respect to the sentence, but reserved its right to speak at sentencing.
On December 23, 1983, the trial court sentenced defendant to a thirty-year term without parole, assessed a $25.00 Violent Crimes Compensation Board penalty for his felony murder conviction, and dismissed the other criminal charges. In February 1984, defendant appealed, challenging the alleged excessiveness of his sentence. In October 1984, following a hearing on the Excessive Sentencing Oral Argument (ESOA) calendar, we affirmed defendant's sentence in an unpublished order in State v. McNeil, No. A-2608-83T4 (App. Div. 1984) (McNeil I).
In June 1994, defendant filed a PCR petition contending that he did not knowingly and voluntarily plead guilty to felony murder. Defendant claimed that he was not told that if he pleaded guilty his sentence of thirty years would carry a parole ineligibility period of thirty years, and that had he known that the minimum sentence he would receive was thirty years without parole, he would not have pleaded guilty. In his brief filed in support of his petition, defendant contended that (1) he did not know all of the penal consequences of his plea agreement before he waived his constitutional rights and pleaded guilty; (2) the five-year ban on PCR applications contained in Rule 3:22-12 was not applicable; and (3) Rule 3:22-4 did not bar his PCR petition because he raised substantial constitutional issues. In October 1994, following argument, the trial court denied defendant's PCR petition. We affirmed, finding all of defendant's arguments without merit, Rule 2:11-3(e)(2), and procedurally barred, Rule 3:22-5; Rule 3:22-12. State v. McNeil, No. A-1333-94T3 (App. Div. Nov. 28, 1995) (slip op. at 3-4) (McNeil II). By order dated May 22, 1996, the Supreme Court dismissed defendant's subsequent petition for certification for lack of prosecution.
Thirteen years after denial of his first PCR petition, and twenty-four years following his guilty plea, defendant filed this, his second PCR petition, arguing that his guilty plea should be vacated because the retroactive cancellation of his commutation and good time credits accrued since the time of sentencing, as per the Merola decision, violated not only the plea agreement, but the State and Federal Constitutions as well.
The PCR judge denied defendant's second PCR petition on both procedural and substantive grounds. As to the former, the court relied on the five-year time bar of Rule 3:22-12, as well as Rule 3:22-4 (claim not raised in prior proceeding) and Rule 3:22-5 (previously raised claim). On the merits, the PCR judge denied relief "on the basis that [defendant's] alleged grievance is not a direct consequence of his conviction and sentence but a collateral consequence resulting from the Appellate Division's decision regarding eligibility for commutation and/or good time credits."
On appeal, defendant raises the following issues:
I. THE RETROACTIVE CANCELLATION OF DEFENDANT'S WORK AND COMMUTATION CREDITS, AFTER THEY WERE ALREADY ENTERED ON HIS OFFICIAL CLASSIFICATION RECORDS, VIOLATED THE PLEA AGREEMENT, AS WELL AS THE CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES.
II. THE RETROACTIVE CANCELLATION OF DEFENDANT'S GOOD TIME CREDITS VIOLATED HIS PLEA AGREEMENT BY AN INCREASE IN HIS SENTENCE, WHEREFORE, THE PLEA MUST BE VACATED AND DEFENDANT ALLOWED TO PROCEED TO TRIAL.
III. THE LAW DIVISION ERRED BY FINDING THE MATTER INVOLVED "COLLATERAL" CONSEQUENCES OF THE PLEA, RATHER THAN "PENAL" CONSEQUENCES OF THE PLEA, ...