On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 03-11-2185, 04-08-1964.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Reisner and Hayden.
Defendant Clarence Melvin appeals from an order dated October 24, 2008 denying his petition for post-conviction relief (PCR). Having considered his contentions in light of the record and the applicable law, we affirm.
On June 10, 2004, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5b(3). A Brimage worksheet was completed with this indictment.*fn1 In exchange for this plea, the State agreed to recommend an extended jail term of eight years with a forty-two-month period of parole ineligibility and to dismiss another count of the indictment and a disorderly persons charge. Shortly thereafter, defendant was arrested and indicted for additional drug charges. On October 26, 2004, defendant pled guilty to second-degree distribution of CDS, N.J.S.A. 2C:35-5b(2), and second-degree conspiracy, N.J.S.A. 2C:5-2 and 2C:35-5b. The State agreed to recommend imposition of an eight-year prison term with a forty-eight-month period of parole ineligibility and to dismiss other counts of the indictment.
On January 14, 2005, Judge Anthony Mellaci presided over defendant's sentencing hearing. Based on defendant's prior record, Judge Mellaci granted the State's motion for an extended term. The judge then sentenced defendant, pursuant to the terms of both plea agreements, to eight years in prison with forty-two months of parole ineligibility on the first indictment and an additional eight years in prison with forty-eight months of parole ineligibility on the second indictment to be served consecutive to the first sentence.
Defendant appealed on the basis of an excessive sentence. When the appeal was scheduled on our Excessive Sentencing Calendar on June 1, 2006, the prosecutor and the defense attorney reached an agreement to remand the matter for re-sentencing due to an error in the Brimage calculations, and they drafted a consent order reflecting the agreement. Accordingly, this court remanded for modification pursuant to the consent order as follows:
The 42-month parole disqualifier shall be reduced to a term between 30 and 36 months in accordance with the Pre-Indictment Cell of Table 2, Row C, Column V, of the Brimage Guidelines. The precise length of the minimum term shall be determined by the prosecutor in accordance with the provisions and requirements of the Brimage guidelines.
If the prosecutor determines that a minimum term above 30-months is required, he shall state his reasons therefore on the record.
Defendant appeared before Judge Mellaci for re-sentencing on September 6, 2006. Prior to the hearing, the State had submitted a letter to the judge stating that a period of parole ineligibility of more than thirty months should be imposed because the original calculation of forty-two months of ineligibility was correct. At the hearing defense counsel stated that the correct parole ineligibility periods under Brimage were thirty months pre-indictment, thirty-six months initial post-indictment and thirty-nine months final post-indictment. She also acknowledged that defendant pled in the final post-indictment period but urged the court to adopt thirty-six months pursuant to the consent order. Defendant addressed the trial judge, stating that he understood the reason the term was thirty-six months but requested the court to give him the thirty-month term.
Judge Mellaci acknowledged receiving the State's letter giving its position on the Brimage calculations and incorporated it into the record. The judge determined from the record that the thirty-six month term of parole ineligibility was applicable and sentenced defendant to eight years with a thirty-six-month period of parole ineligibility. At this hearing the judge advised defendant of his right to appeal his sentence. Nevertheless, defendant failed to file an appeal.
On December 17, 2007, defendant filed a petition for PCR and subsequently was appointed counsel. Defendant argued that his sentence was illegal because the State had not stated its reasons on the record for requiring a period of parole ineligibility above thirty months. Defendant also argued that the sentence was illegal due to the court double-counting certain factors, but this issue is not before us on this appeal. The State argued that defendant's claim was not eligible to be heard through a PCR petition under Rule 3:22-2(c).
After the parties filed briefs, Judge Mellaci held a hearing on October 24, 2008, for argument on the petition. Judge Mellaci first found that defendant could have taken a direct appeal on the sentence and was therefore procedurally barred from filing a PCR petition. The judge reasoned that, as defendant's sentence fell within the accepted statutory range, it was not illegal. To the extent that defendant was arguing that judicial ...