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State of New Jersey v. William Acevedo

February 1, 2011

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
WILLIAM ACEVEDO, JR., DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division.

Per curiam.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. William Acevedo, Jr.

(A-95-09)

Argued November 30, 2010 -- Decided February 1, 2011

PER CURIAM

In this appeal, the Court decides whether the imposition of consecutive sentences without a statement of reasons gives rise to relief on a petition for post-conviction relief (PCR).

In 1995, defendant William Acevedo entered a negotiated guilty plea to aggravated manslaughter and burglary in exchange for the dismissal of several charges, including knowing murder, robbery, and felony murder. The negotiated plea disposition included the recommendation that the manslaughter count result in a sentence of thirty years with fifteen to be served without parole, and a consecutive ten-year sentence, five without parole, for the robbery count. The overall sentence was to be forty years in prison, twenty without parole. At the plea hearing, Acevedo gave a factual basis for his plea and stated that he understood the recommended sentence. The statement of reasons on the record and the judgment of conviction identifies three aggravating factors, indicates no mitigating circumstances, and refers to the plea agreement. Reasons for the consecutive sentences were not stated.

In 2007, Acevedo filed a "motion to correct illegal sentence" arguing that the court did not properly weigh aggravating and mitigating factors. The motion was treated as a PCR, which the court denied. The court found that the sentence imposed was not illegal because it did not exceed the maximum permitted under the sentencing statute; and that Acevedo's argument was really an excessive sentence argument, which must be raised in a direct appeal.

On appeal at Sentence Oral Argument, Acevedo's attorney argued that a mitigating factor applied because Acevedo cooperated with police, and that the aggravating factor for prior record should have been discounted because he had only a prior juvenile adjudication. The Appellate Division noted that a challenge based on excessiveness is not cognizable on PCR and concluded that the sentence imposed was not illegal. It nevertheless noted that reasons for imposing consecutive sentences must be expressly stated, found that the sentences imposed were "manifestly excessive and unduly punitive," and ordered that the sentences be modified to run concurrently.

The Court granted certification. 202 N.J. 45 (2010).

HELD: Defendant's sentence was not "illegal" and therefore not subject to modification on PCR.

1. An illegal sentence is one that exceeds the maximum permitted by statute or is not imposed pursuant to law. At sentencing, the court must explain the reasons for imposing consecutive sentences. However, mere excessiveness of a sentence that is otherwise within authorized limits can only be raised on direct appeal from the conviction and is not an appropriate ground of PCR. Because Acevedo's arguments do not relate to the issue of sentence "legality" and are not cognizable on PCR, the Appellate Division erred in modifying the sentence. (pp. 7-10)

The order of the Appellate Division is REVERSED and the order of the Law Division is REINSTATED.

CHIEF JUSTICE RABNER, JUSTICES LONG, LaVECCHIA, ALBIN, RIVERA-SOTO and HOENS, and JUDGE STERN (temporarily assigned) join in this opinion.

Argued November 30, 2010

In this case we are asked to decide whether the imposition of consecutive sentences without a statement of reasons gives rise to relief on a petition for post-conviction relief (PCR). We hold that the sentence was not "illegal" and therefore not subject to modification on PCR. Accordingly, we reverse the Appellate Division order that modified the ...


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