                                NOT FOR PUBLICATION WITHOUT THE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-5329-18T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

TROY SWINT,

         Defendant-Appellant.


                   Submitted May 28, 2020 – Decided June 15, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 96-10-3475.

                   Troy Swint, appellant pro se.

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Caroline C. Galda,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      On March 13, 2019, Judge Michael L. Ravin denied defendant Troy

Swint's motion "to correct illegal sentence." On May 13, 2019, Judge Ravin

denied defendant's motion for reconsideration. That application included an

additional ground—that co-defendant Corey Smith's resentence to forty years

subject to twenty years parole ineligibility, consecutive to fifteen years with a

five-year term of parole ineligibility was so disparate a sentence as to warrant

reconsideration of defendant's sentence. Defendant, having been convicted by

a jury of the same crimes as Smith, was resentenced on our remand on March 6,

2000, to life, must serve twenty-five years before parole, to run consecutive to

an extended term of fifteen years, subject to five years without parole. Having

considered defendant's arguments, and reviewed the record, we affirm for the

reasons stated by Judge Ravin.

      A jury convicted defendant of first-degree kidnapping, N.J.S.A. 2C:13-

1(b)(1), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The jury

also convicted defendant of third-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(d), and second-degree possession of a handgun for

an unlawful purpose, N.J.S.A. 2C:39-4(a). Those crimes were merged with the

kidnapping and aggravated assault charges.




                                                                        A-5329-18T4
                                       2
      Since imposition of the sentence, defendant has engaged in various

challenges to his sentence, and appeals of those decisions.         Defendant's

conviction and sentence were reviewed and affirmed in State v. Swint, 328 N.J.

Super. 236 (App. Div. 2000). We remanded because the sentencing judge was

obligated to increase the prison term he imposed to include twenty-five years of

parole ineligibility. Id. at 262-63. We also reviewed and found proper the

imposition of consecutive sentences, because of the nature of the crime which

involved the kidnapping and torture of the victim. Id. at 264-65. The Supreme

Court denied defendant's petition for certification. State v. Swint, 165 N.J. 492

(2000).

      After the trial judge resentenced him in accordance with our remand,

defendant filed a first petition for post-conviction relief (PCR), which was

denied. He appealed the denial of that petition, alleging ineffective assistance

of trial, appellate, and PCR counsel. State v. Swint, No. A-5545-05 (App. Div.

July 30, 2008), certif. denied, 197 N.J. 14 (2008).

      Defendant filed an appeal from a January 8, 2007 decision denying his

motion to correct an illegal sentence. We affirmed by way of unpublished

opinion. State v. Swint, No. A-2850-06 (App. Div. July 9, 2009).




                                                                        A-5329-18T4
                                        3
         Defendant's second petition for PCR relief was also denied, appeal taken,

and an unpublished decision rendered affirming the trial court. State v. Swint,

No. A-5733-11 (App. Div. July 25, 2013), certif. denied, 217 N.J. 292 (2014).

It is fair to say that defendant's claims regarding the legality of his sentence have

been repeatedly addressed both in the Law and Appellate Division.

         On appeal, defendant argues:

               I. THE DECISION TO DENY APPELLANT A
               HEARING TO CORRECT AN ILLEGAL SENTENCE
               ON THE MATTER OF THE EXTENDED TERM,
               AND AN OPPORTUNITY TO MAKE A COMPLETE
               RECORD OF THE PROCEEDING VIOLATED
               APPELLANT'S SIXTH AND FOURTEENTH
               AMENDMENT RIGHTS TO A FAIR AND LEGAL
               PROCEEDING.

               II. THE SENTENCING COURT ABUSED ITS
               DISCRETION WHEN IT IMPOSED A SECOND
               MANDATORY EXTENDED TERM SENENCE ON
               COUNT THREE OF THE INDICTMENT.

               III.  THE LOWER COURT ABUSED ITS
               DISCRETION WHEN IT FAILED TO VACATE AND
               CORRECT APPELLANT'S SENTENCE WHICH IS
               DISPROPORTIONATE TO HIS CO-DEFENDANT.

As Judge Ravin concluded, the issue of the legality of the sentence has been

repeatedly considered, in addition to the fact the arguments lacked any inherent

merit.



                                                                            A-5329-18T4
                                         4
        Defendant also raises the issue of his co-defendant's resentence. On that

score, the illegality in the co-defendant's sentence was that the co-defendant was

sentenced to one mandatory and one discretionary term when he should have

been sentenced to two mandatory extended terms pursuant to the Graves Act.

Because that sentence was illegal, as opposed to defendant's sentence, which

properly included two mandatory Graves Act sentences from their inception, the

court had to consider the co-defendant as he stood before the judge.

        When    resentenced,   the   co-defendant   was    able   to   demonstrate

rehabilitative gains since the crimes were committed. See State v. Randolph,

210 N.J. 330, 354 (2012). The co-defendant's remand sentence was necessitated

by a rather unusual combination of circumstances which gave the co-defendant

an opportunity to present his accomplishments to the court while imprisoned,

thus resulting in a reduction of five years of parole ineligibility. That reduction

does not constitute, as Judge Ravin noted, a disparity in sentence that warrants

reconsideration. We agree with defendant that courts are required to sentence

evenhandedly. See State v. Roach, 167 N.J. 565, 570 (2001). That occurred

here.

        Affirmed.




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