On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 86-10-1413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Skillman.
Defendant Miguel Melendez appeals from an order entered by the Law Division on January 12, 2010, which denied his motion to vacate his sentence and for the appointment of counsel. We affirm.
On June 3, 1987, defendant was found guilty of murder, conspiracy to commit murder, possession of a handgun for an unlawful purpose and unlawful possession of a handgun. The court merged the conspiracy conviction with the murder conviction and sentenced defendant to life imprisonment, with a thirty-year period of parole ineligibility, for the murder conviction; a consecutive ten-year term, with a three-and-one-half year period of parole ineligibility, for possession of a weapon for an unlawful purpose; and a concurrent five-year term for unlawful possession of a weapon.
Defendant appealed and argued: 1) the trial court committed reversible error by not including a manslaughter charge to the jury; 2) the trial court committed plain error by not charging the jury as to the identification issue; or, in the alternative, defendant was denied the effective assistance of counsel because trial counsel requested that the trial court omit the instruction; and 3) the court erred in imposing a consecutive term and a parole ineligibility term on the conviction for possession of a weapon for an unlawful purpose. We rejected these arguments and affirmed the conviction and sentences imposed in an unpublished opinion. State v. Melendez, No. A-6088-86 (App. Div. Mar. 28, 1989). The Supreme Court denied defendant's petition for certification. State v. Melendez, 117 N.J. 159 (1989).
In March 1992, defendant filed a petition for post-conviction relief (PCR), which the court denied on December 15, 1992. We affirmed in an unpublished opinion. State v. Melendez, No. A-793-93 (App. Div. Oct. 24, 1995). The Supreme Court denied defendant's petition for certification. State v. Melendez, 143 N.J. 330 (1996).
In February 1999, defendant filed a second PCR petition, in which he alleged that he had been denied the effective assistance of trial, appellate and PCR counsel. The trial court entered an order on September 10, 1999, denying the petition. We affirmed in an unpublished opinion. State v. Melendez, No. A-1253-99 (App. Div. Oct. 19, 2000). The Supreme Court denied defendant's petition for certification. State v. Melendez, 167 N.J. 631 (2001).
In June 2009, defendant filed a motion in the Law Division to correct what he alleged was an illegal sentence. He asserted that N.J.S.A. 2C:11-3(b)(1) is unconstitutional because it permits "unequal treatment" of defendants who are convicted of murder since some defendants are sentenced to life with thirty years of parole ineligibility, while others receive thirty years without parole. The court filed a letter opinion dated January 12, 2010, in which it concluded that the issues raised by defendant were without merit. The court entered an order dated January 13, 2010, memorializing its decision.
Defendant appeals and raises the following argument for our consideration: [N.J.S.A. 2C:11-3(b)(1)] IS UNCONSTITUTIONAL IN THAT IT ALLOWS FOR UNEQUAL TREATMENT AMONGST DEFENDANTS WHO ARE CONVICTED AND SENTENCED FOR MURDER, IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS, WHERE SOME DEFENDANTS RECEIVE "LIFE" WITH THIRTY YEARS WHILE OTHERS RECEIVE THIRTY YEARS WITHOUT PAROLE.
We are convinced that this argument is "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We accordingly affirm the order of January 13, 2010, substantially for the reasons stated by the Law Division in its letter opinion dated January 12, 2010. We add the following brief comments.
As the court pointed out in its letter opinion, defendant's sentence for the murder conviction is within the parameters established by N.J.S.A. 2C:11-3(b) and is therefore legal. The court noted that defendant's sentence had been affirmed in the direct appeal, and any arguments challenging the legality of that sentence should have been raised in that proceeding. The court also noted that defendant had failed to allege any facts showing that the sentencing court erred by imposing the sentence, and the claim that the sentence was arbitrary, capricious and unconstitutional was based entirely on conclusory statements.
The court added that defendant had been convicted twenty-six years earlier based on evidence that he shot and killed a man for a $5000 fee. The court noted that defendant shot the victim in the presence of the victim's daughter, who was ten years old at the time. The court stated that there was overwhelming evidence of the defendant's guilt of the charged offenses, and the jury had "spared" his life in the penalty phase of the trial. The court ...