August 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFRED MCMILLAN,*FN1 DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 92-07-1560.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 6, 2012 -
Before Judges Ashrafi and Hayden.
Defendant Alfred McMillan is serving a sentence of life imprisonment for murder and other crimes. During the first seventeen years after he was originally sentenced, he filed many appeals and collateral attacks on his conviction and sentence, but he did not challenge the imposition of a $5,000 penalty payable to the Victims of Crime Compensation Board (VCCB), N.J.S.A. 2C:43-3.1. In April 2011, he filed a motion asserting that the money penalty is an illegal part of his sentence. We affirm the trial court's order denying defendant's motion.
A jury convicted defendant of murder, N.J.S.A. 2C:11-3a, resulting from the shooting of the victim after an argument outside a nightclub. Defendant was also convicted of aggravated assault, N.J.S.A. 2C:12-1b(1), because one of the four shots he fired injured the doorman at the nightclub. A third count of conviction was for unlawful possession of a handgun, N.J.S.A. 2C:39-5b. On July 1, 1994, the trial court imposed consecutive sentences on the three charges: life with thirty years before parole eligibility on the murder charge, ten years with five years before parole eligibility on the aggravated assault charge, and five years with two-and-a-half years before parole eligibility on the weapons charge. In addition, the court imposed VCCB penalties of $5,000 on the murder charge, $100 on the aggravated assault charge, and $50 on the weapons charge.
While defendant's direct appeal was pending, the trial court amended the sentence on the aggravated assault charge from a second-degree to a third-degree range, and it reduced that part of the sentence to five years with two-and-a-half years of parole ineligibility. Thus, defendant's sentence before disposition of his direct appeal was life plus ten years imprisonment, thirty-five years of which was to be served before parole eligibility. The VCCB penalties were $5,150.
We affirmed defendant's conviction on direct appeal but remanded for re-sentencing only on the aggravated assault charge. We directed the trial court to run that sentence concurrent with the other sentences. State v. McMillian, No. A-6815-93 (App. Div. Dec. 14, 1995). The Supreme Court denied defendant's petition for certification. State v. McMillian, 144 N.J. 175 (1996).
On remand following the direct appeal, the trial court appears to have mistakenly modified the sentence on the weapons charge rather than on the aggravated assault charge. The amended judgment of conviction dated February 26, 1996, imposed a concurrent sentence of five years imprisonment with three years of parole ineligibility on the charge of unlawful possession of a handgun. We have no record indicating that defendant's sentence on the aggravated assault charge was modified as we directed. On September 13, 1996, the trial court ordered that the VCCB penalty be paid on an installment schedule.*fn2
Two months earlier, in July 1996, defendant had filed a pro se motion for post-conviction relief (PCR) pursuant to Rule 3:22. On September 18, 1998, the court denied the PCR motion. We affirmed that ruling on defendant's appeal. State v. McMillian, No. A-1263-97 (App. Div. Mar. 29, 1999). The Supreme Court again denied defendant's petition for certification. State v. McMillian, 161 N.J. 331 (1999).
Defendant then filed an application in federal court for habeas corpus relief pursuant to 28 U.S.C. § 2254. The United States District Court for the District of New Jersey dismissed defendant's application on December 18, 2000. The United States Court of Appeals for the Third Circuit affirmed that ruling on October 17, 2003, and subsequently, denied his motion for rehearing and rehearing en banc.
Back before the State court, defendant's second PCR motion was denied on April 12, 2007. A "revised" motion to challenge the legality of defendant's sentence based on alleged unconstitutional disparity with the sentences of other persons was denied on July 19, 2007. Defendant's motion for reconsideration of those rulings was denied on October 12, 2007.
On August 24, 2009, the trial court denied defendant's motion to "revoke unpaid fines."
On April 15, 2011, almost seventeen years after his original sentencing and after at least ten other proceedings on direct appeal and on collateral attack upon his conviction and sentence, defendant filed a motion to set aside imposition of the $5,000 VCCB penalty on the ground that it is an illegal part of his sentence on the murder charge. The trial court denied the motion by order and letter-opinion dated June 21, 2011. This appeal is from that ruling.
Defendant makes the following arguments:
TRIAL JUDGE ISAIAH STEINBERG DID NOT TAKE INTO ACCOUNT DEFENDANT'S FINANCIAL SITUATION AT THE TIME OF THE SENTENCE NOR THE IMPACT IT WOULD HAVE ON DEFENDANT'S TWO CHILDREN.
TRIAL JUDGE ISAIAH STEINBERG DID NOT AFFORD DEFENDANT AN OPPORTUNITY TO BE HEARD CONCERNING MY FINANCIAL SITUATION.
TRIAL JUDGE ISAIAH STEINBERG NEVER ARTICULATED HIS REASONS ON THE RECORD FOR IMPOSING THE FINE WHICH WAS WELL OVER THE STATUTORY MINIMUM.
We find no merit in any of these arguments. The $5,000 VCCB penalty is not an illegal sentence. Defendant's challenge to the adequacy of the sentencing proceedings by which the penalty was imposed is untimely and otherwise barred by the court rules. Moreover, as a factual matter, the money penalty is neither unauthorized nor an abuse of the trial court's discretionary sentencing authority.
The law imposes no time limit on a challenge to an illegal sentence. R. 3:21-10(b)(5); State v. Romero, 191 N.J. 59, 80 (2007); State v. E.W., 413 N.J. Super. 70, 77-78 (App. Div. 2010). An illegal sentence is one that is not authorized under the law or is imposed contrary to certain specific statutory requirements. State v. Murray, 162 N.J. 240, 246-47 (2000). The $5,000 VCCB penalty is not an illegal sentence because it is expressly authorized by N.J.S.A. 2C:43-3.1a(1) and it is not contrary to any other statute.
Defendant cites a series of cases that establish procedural requirements for the imposition of a money penalty, including a determination of the defendant's ability to pay. See State v. Newman, 132 N.J. 159, 169 (1993); State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.), certif. denied, 170 N.J. 210 (2001); State v. Swint, 328 N.J. Super. 236, 264 (App. Div.), certif. denied, 165 N.J. 492 (2000); State v. McLaughlin, 310 N.J. Super. 242, 263-65 (App. Div.), certif. denied, 156 N.J. 381 (1998); State v. Ferguson, 273 N.J. Super. 486, 498 (App. Div.), certif. denied, 138 N.J. 265 (1994); see N.J.S.A. 2C:43-3.1a(1) ("In imposing [the VCCB] assessment, the court shall consider factors such as the severity of the crime, the defendant's criminal record, defendant's ability to pay and the economic impact of the assessment on the defendant's dependents."). Alleged procedural shortcomings by which a penalty was imposed, however, do not render the sentence illegal.
In this case, defendant had many opportunities to raise a challenge to the procedure by which the VCCB penalty was imposed. As shown by the history of the case recited here, defendant had ten or more prior proceedings in which he challenged his conviction or sentence or both and could also have challenged the imposition of the $5,000 penalty on the ground that the court did not determine whether he has the ability to pay it or take into consideration the needs of his dependents. Until April 2011, he did not contend that the VCCB penalty was improperly imposed. Rule 3:22-12 generally sets a five-year time limit to bring a collateral challenge to a conviction or sentence on procedural grounds and thus bars defendant's contentions. In addition, Rule 3:22-4 generally prohibits a collateral challenge to a conviction or sentence on grounds that could have been raised in prior proceedings and is an additional bar to defendant's contentions. The trial court's June 21, 2011 decision correctly held that defendant's current challenge to the VCCB penalty is barred by our court rules.
Moreover, because defendant was permitted to pay the penalty in small installments over the duration of his sentence, there is nothing improper as a factual matter with the imposition of the penalty upon defendant. In fact, by operation of statute, N.J.S.A. 2C:43-3.1a(3); 2C:46-4a(1), money penalties imposed upon State prison inmates are deducted in increments from their prison funds in accordance with statutory provisions, N.J.S.A. 30:4-91.4, and Department of Corrections regulations, N.J.A.C. 10A:2-2.2.
The trial court reviewed defendant's inmate account and determined that as of March 2011, he had paid through such small deductions about $3,087 of the total assessment of $5,150. Therefore, the record shows that defendant has the ability to pay the full amount of the VCCB penalty during service of his life sentence, and specifically, during the minimum thirty-twoand-a-half years of parole ineligibility before he might be released.
For these reasons, we reject defendant's challenge to the $5,000 VCCB penalty.