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State of New Jersey v. Alfred Mcmillan

August 10, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ALFRED MCMILLAN,*FN1 DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 92-07-1560.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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