                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3602-16T2

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

SEAN MALCOLM,

     Defendant-Appellant.
_____________________________

                   Submitted January 28, 2019 – Decided May 17, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 02-10-2257.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Andrew R. Burroughs, Designated Counsel,
                   on the brief).

                   Esther Suarez, Hudson County Prosecutor, attorney
                   for respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Sean Malcolm appeals from the Law Division order denying

his motion to correct an illegal sentence for the conviction of felony murder and

other related offenses. For the reasons that follow, we affirm.

      We need not detail the procedural history, trial or post-trial litigation that

proceed this appeal, as they are fully detailed in our unpublished opinions

affirming defendant's conviction but reversing and remanding for resentencing,

and affirming the denial of defendant's petition for post-conviction relief (PCR).

State v. Malcolm, No. A-3186-04 (App. Div. May 22, 2007); State v. Malcolm,

No. A-3187-09 (July 24, 2012). A brief summary will suffice.

      Following a four-week jury trial in 2003, defendant was found guilty of

felony murder, aggravated assault, burglary and related weapon offenses arising

from the shooting death of Carlos Phillips on May 7, 2002. After merger, he

was sentenced to an aggregate prison term of fifty years, subject to the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.

      We affirmed defendant's conviction on appeal, but vacated his sentence

and remanded for re-sentencing.1 On remand, the trial court reduced defendant's

aggregate prison term from fifty years to thirty years subject to NERA.



1
  Defendant's petition for certification was denied. State v. Malcolm, 192 N.J.
481 (2007).
                                                                           A-3602-16T2
                                         2
      Defendant thereafter filed a petition for PCR alleging that he was deprived

of the effective assistance of trial and appellate counsel. The PCR judge rejected

the claim that the jury charges on accomplice liability and cross-racial

identification were flawed, and after an evidentiary hearing, she found that

counsel made a reasonable "strategic decision" not to call possible alibi

witnesses. In addition, the judge found defendant's testimony lacking credibility

to sustain any PCR claim.

      We affirmed the denial of PCR, but remanded the matter, directing the

judge to address defendant's allegation that a juror was improperly influenced

to find him guilty. On remand, following an evidentiary hearing, a different

PCR judge entered an order denying relief based on the finding that there was

no evidence of misconduct. Defendant did not appeal that order.

      This brings us to the current appeal from the denial of defendant's motion

to correct an illegal sentence, Rules 3:21-10(b)(4) and -10(6)(2). In the motion,

filed about three years after the denial of PCR, defendant contended that his

thirty-year NERA prison term was manifestly excessive, and that the trial court

failed to consider mitigating factors four, seven, nine, eleven and thirteen.

N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify

defendant's conduct); -1(b)(7) (no prior convictions or criminal history); -


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                                        3
1(b)(9) (unlikely to commit another offense); -1(b)(11) (the imprisonment

would entail excessive hardship to defendant or his dependents); and -1(b)(13)

(substantially influenced by a more mature person than he). He also sought to

be released from prison under Rule 3:21-10(b)(2), due to diabetes, high blood

pressure and other health issues. Finding no legal error in his senten cing and no

medical basis for early release, the trial judge entered an order denying the

motion.2

      Before us, defendant raises the following argument:

            POINT I

            DEFENDANT SHOULD BE RESENTENCED
            BECAUSE HIS SENTENCE IS ILLEGAL, THE
            RESENTENCING JUDGE FAILED TO CONSIDER
            CERTAIN MITIGATING FACTORS, AND HE
            SUFFERS CERTAIN MEDICAL INFIRMITIES
            THAT ENTITLE HIM TO RELEASE UNDER
            [RULE] 3:21-10(B)(2).

      In his first argument, defendant asserts that his thirty-year NERA prison

term imposed upon resentencing for felony murder was "manifestly excessive,"

and "violated [his] constitutional right under Blakely v. Washington[, 542 U.S.

296 (2004)] and State v. Natale[,184 N.J. 458 (2005)]." He is incorrect.



2
  A transcript of the judge's oral decision is unavailable because according to
the trial court the audiotape is missing.
                                                                         A-3602-16T2
                                        4
      An illegal sentence is one that is contrary to the Code of Criminal Justice

or constitutional principles. State v. Acevedo, 205 N.J. 40, 45 (2011). N.J.S.A.

2C:11-3(b)(1) clearly provides, subject to certain exceptions not applicable here,

that the term of imprisonment for felony murder is either "a term of 30 years,

during which the person shall not be eligible for parole, or . . . a specific term

of years which shall be between 30 years and life imprisonment of which the

person shall serve 30 years before being eligible for parole." See also State v.

Scales, 231 N.J. Super. 336, 340 (App. Div. 1989) (holding that, as the result of

1982 amendments to the Criminal Code, "three alternative sentences for murder

could be imposed: (1) death; (2) a sentence of 30 years without parole; and (3)

a sentence between thirty years and life, with a 30-year term of parole

ineligibility."). Defendant's sentence comports with these requirements. Also,

the period of parole ineligibility that was imposed under NERA was appropriate

given that felony murder is an enumerated offense in N.J.S.A. 2C:43-7.2.

      Additionally, none of the cases defendant cites in his brief support his

contention that his sentence was illegal. The United States Supreme Court ruled

in Blakely "that a sentence based on judicial [fact finding] that exceeds the

maximum sentence authorized by either a jury verdict or a defendant's

admissions at a plea hearing runs afoul of the Sixth Amendment right to trial by


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                                        5
jury." Natale, 184 N.J. at 465-66 (citing Blakely, 542 U.S. at 304). Yet, "the

traditional discretionary power of a judge to sentence within the applicable

sentencing range authorized by the verdict or the defendant's guilty plea[]"

remains. Id. at 477 (citing Blakely, 542 U.S. at 307-08).

      Adhering to the principles articulated in Blakely, our Supreme Court in

Natale held that,

            [a]side from the exceptions for prior criminal
            convictions and consent to judicial [fact finding], the
            Sixth Amendment prohibits a judge from imposing a
            sentence greater than that allowed by the jury verdict
            or by the defendant's admissions at a plea hearing.
            Those are the constitutional boundaries for the
            exercise of a judge's discretion at sentencing.

            [184 N.J. at 482.]

To curb violation of this guideline, the Court went on to state:

            [the] best [way to] preserve the major elements of our
            sentencing code and cause the least disruption to our
            criminal justice system[ is to] eliminate[] the
            presumptive terms. Without presumptive terms, the
            "statutory maximum" authorized by the jury verdict or
            the facts admitted by a defendant at his guilty plea is
            the top of the sentencing range for the crime
            charged[.]

            Id. at 487.

Otherwise, "the sentencing process will remain essentially unchanged. Judges

will continue to determine whether credible evidence supports the finding of

                                                                      A-3602-16T2
                                        6
aggravating and mitigating factors and whether the aggravating or mitigating

factors preponderate." Id.

      Defendant's sentence does not conflict with Blakely nor Natale.           No

presumptive sentencing was applied, there was a balancing of aggravating and

mitigating factors, and the sentence is within our sentencing guidelines.

      Turning to defendant's argument that the motion judge was mistaken in

not considering various mitigating factors, it is likewise without merit. Those

arguments are not cognizable on a motion to correct an illegal sentence. See

Acevedo, 205 N.J at 47 (citation omitted). That stated, the resentencing judge

did consider mitigating factor seven. And, based upon our review of the record,

we agree with the State that the other mitigating factors asserted by defendant

do not apply. Even considering all of the mitigating factors defendant contends

apply, he makes no showing that these factors would support a reasonable

probability that his sentence would have been different if the minimum sentence

permitted by N.J.S.A. 2C:11-3(b)(1) was imposed.

      In addition, defendant argues that he should be granted an early release

under Rule 3:21-10(b)(2) because he has "[h]ypertension, diabet[es,] . . .eye

disease, [n]europathy . . . , and kidney failure." We see no merit to this claim.




                                                                          A-3602-16T2
                                        7
         Upon motion with supporting affidavits and such other documents and

papers, a court has the discretion to release a defendant from prison because of

an "illness or infirmity." R. 3:21-10(b)(2), -10(c); State v. Tumminello, 70 N.J.

187, 193 (1976). An inmate "must show that the medical services unavailable

at the prison would be not only beneficial and, in the case of therapy,

rehabilitative, but are essential to prevent further deterioration in his health."

State v. Priester, 99 N.J. 123, 135 (1985). Further, an inmate must show that

there has been a changed circumstance in health "since the time of the original

sentence." Id. at 136. In addition, "among other factors . . . deem[ed] relevant

to the determination of a[n] [early medical release] are the nature and severity

of the crime, the severity of the sentence, the criminal record of the defendant,

the risk to the public if the defendant is released, and the defendant's role in

bringing about his current state of health." Id. at 137.

         Defendant has not presented any affidavit or documents supporting his

claim.     In fact, he has been receiving medical care for his illnesses while

imprisoned and he has not established that imprisonment has caused his

condition to deteriorate or that the State is unable to address his medical needs.

We are also mindful of the seriousness of defendant's felony murder offense.




                                                                         A-3602-16T2
                                        8
Consequently, we see no abuse in discretion in denying defendant's motion. Of

course, defendant is free to refile his motion should his health situation change.

      Finally, defendant contends that he should have been assigned counsel to

assist him under Rule 3:21-10(c) in his motion for early release. While, as noted,

there is no transcript of the trial judge's oral decision denying counsel, our

review of the record identifies no good cause, as required by Rule 3:21-10(c), to

assign counsel for defendant. Considering defendant may file another motion

for early release, and he is currently represented by the Office of the Public

Defender, he may seek the aid of counsel should he pursue early release due to

poor health.

      Affirmed.




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