                                NOT FOR PUBLICATION WITHOUT THE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-5136-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VERNON COLLINS,1

     Defendant-Appellant.
__________________________

                   Submitted August 10, 2020 – Decided August 17, 2020

                   Before Judges Whipple and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Indictment No. 86-08-0769.

                   Vernon Collins, appellant pro se.

                   Angelo J. Onofri, Mercer County Prosecutor, attorney
                   for respondent (Laura C. Sunyak, Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM


1
 Defendant is referenced in the record also as Vernon Allen Collins and Vernon
A. Collins.
      Defendant Vernon Collins appeals from the denial of his Rule 3:21-10

motion to correct an illegal sentence. We affirm.

      The facts relevant to defendant's conviction are discussed at length in his

initial direct appeal, State v. Collins, No. A-5173-88 (App. Div. July 21, 1992)

certif. denied, 130 N.J. 601 (1992), (Collins I) and need not be repeated at length

here. Briefly, defendant was indicted in 1986 for possession of a controlled

dangerous substance (CDS), N.J.S.A. 24:21-20(a)(2), (count one); possession of

CDS with intent to distribute, N.J.S.A. 24:21-19(a)(1), (count two); unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b), (count three); and possession of

hollow point bullets, N.J.S.A. 2C:39-3(f), (count four). In 1988, he was found

guilty on each count.

      At his sentencing on May 5, 1989, defendant exercised his right to

allocution, under Rule 3:21-4(b), before Judge David J. Schroth imposed a

prison term for life, with a twenty-five-year parole ineligibility period on count

two. The judge also directed defendant to serve a consecutive seven-year term

on count one and a five-year term on count three, concurrent to the sentences

imposed on counts one and two. Also, the judge merged count four into count

three at sentencing. On May 24, 1989, Judge Schroth executed a judgment of

conviction (JOC) reflecting this sentence, and as we observed in Collins I, per


                                                                           A-5136-18T3
                                        2
the JOC, defendant was directed to serve his aggregate sentence "consecutive to

a previous thirty-five-year sentence for a Maryland conviction." 2

      On direct appeal, we affirmed defendant's conviction, but remanded to the

Law Division for "merger of the count for possession of heroin into the count

for possession with intent to distribute, and for amendment of the judgment of

conviction and the sentence imposed pursuant thereto." Collins I, slip op. at 6,

16.

      Turning to the instant appeal, we note that one of defendant's contentions

on direct appeal, specifically at Point VI, was that his sentence "must be

modified on several grounds." In particular, at Point VI-A., defendant argued

that "this sentence must run concurrently with the federal [sic] defendant is

serving." Importantly, in Collins I, we disagreed and determined that "[w]ith

the exception of Point VI[-]B[.] (involving merger of counts one and two), we

find all of the defendant's contentions to be clearly without merit." Id. at 5.

      On September 30, 1993, Judge Schroth entered an amended JOC

consistent with our remand order, merging counts one and two. In doing so, the


2
  According to the May 1989 sentencing transcript, defendant was convicted in
Maryland in July 1987 for "conspiracy to distribute a CDS, possession of CDS
with intent to distribute and employing persons under eighteen with the intent
to distribute a [CDS]."


                                                                           A-5136-18T3
                                        3
judge left intact the life sentence and twenty-five-year period of parole

ineligibility for count two and concurrent five-year term on count three.

Likewise, count four remained merged and dismissed, and in the amended JOC,

the judge confirmed defendant's resentence would run consecutively to "any

other prison terms imposed by the State of Maryland on other matters."

Defendant did not appeal from this amended JOC.

      In August 2017, defendant filed a Rule 3:21-10 motion, arguing his

sentence was illegal. On June 19, 2019, the motion judge denied the motion for

"failing to state a claim [on] which relief can be granted." The motion judge

recognized that Rule 3:21-10(b)(5) permitted him to correct "a sentence not

authorized by law." However, the judge also acknowledged that per State v.

Clark, 65 N.J. 426, 437 (1974), "mere excessiveness of sentence otherwise

within authorized limits, as distinct from illegality by reason of being beyond or

not in accordance with legal authorization, is not an appropriate ground of post-

conviction relief and can only be raised on direct appeal from the conviction."

Additionally, the motion judge referenced State v. Acevedo, 205 N.J. 40, 47

(2011) to confirm that "allegations of improper consideration of aggravating and

mitigating factors and consecutive sentencing guidelines [are] not cognizable"

in post-conviction proceedings. Finally, the motion judge found defendant was


                                                                          A-5136-18T3
                                        4
sentenced to the "maximum term under the statute, but Judge Schroth was within

his power to order that sentence."

      On appeal, defendant raises the following arguments            for our

consideration:

                                     POINT I

            THE MERCER COUNTY SUPERIOR COURT
            ERRED IN CONCLUDING [DEFENDANT'S]
            MOTION TO CORRECT AN ILLEGAL SENTENCE
            CLAIMS WERE NOT COGNIZABLE BECAUSE
            THEY [WERE] SIMILAR TO THE EXCESSIVE OF
            SENTENCE CLAIM THE NEW JERSEY SUPREME
            COURT DENIED RECENTLY IN ACEVEDO.

                                     POINT II

            THE MERCER COUNTY SUPERIOR COURT
            ERRED IN HOLDING THAT THE SENTENCING
            TRANSCRIPT ESTABLISHES THE TRIAL COURT
            IMPOSED    THE    SENTENCES   TO   RUN
            CONSECUTIVE     WITH   THE  FEDERALLY
            [-]IMPOSED THIRTY-FIVE YEAR [SENTENCE]
            SINCE THE SENTENCING TRANSCRIPT DOES
            NOT [SUPPORT] THAT CLAIM.

                                     POINT III

            THE MERCER COUNTY SUPERIOR COURT
            ERRED IN CONCLUDING [DEFENDANT'S]
            CLAIMS WERE NOT COGNIZABLE UNDER N.J.
            CT. RULE 3:21-10(B)(5) WHEN THE SENTENCES
            ORIGINALLY      IMPOSED    WITHOUT    ANY
            SPECIFICITY OF RUNNING CONCURRENT OR
            CONSECUTIVE       WITH   THE    FEDERALLY

                                                                      A-5136-18T3
                                        5
              [-]IMPOSED SENTENCE WAS INCREASED BY
              ADDING A PROVISION IN THE JUDGMENT OF
              CONVICTION AND ORDER FOR COMMITMENT
              SOME [NINETEEN] DAYS LATER AFTER
              [DEFENDANT] HAD LEFT THE COURTHOUSE
              THOSE    SENTENCES   WERE    TO  RUN
              CONSECUTIVE.

                                   POINT IV

              THE SUPERIOR COURT ERRED IN CONCLUDING
              CLAIMS INVOLVING CONSIDERATION OF
              AGGRAVATING      FACTORS    WERE    NOT
              COGNIZABLE CLAIMS ON PROCEDURAL
              GROUNDS IN LIGHT OF CUNNINGHAM v.
              CALIFORNIA 3 RENDER THE LIFE SENTENCE
              WITH     TWENTY-FIVE    YEARS    PAROLE
              INELIGIBILITY IMPOSED PURSUANT TO 2C-44-
              1(A) AND (B) AN ILLEGAL SENTENCE SINCE
              THE QUANTUM OF PUNISHMENT WAS
              INCREASED UPON THE TRIAL COURT FINDING
              STATUTORY       AND     NON[-]STATUTORY
              AGGRAVATING FACTORS NOT FOUND BY THE
              JURY BEYOND A REASONABLE DOUBT.

        Based on our careful review of the record, as well as this matter's

extensive procedural history, we find these arguments unpersuasive.

        "A defendant may challenge an illegal sentence at any time." State v.

Zuber, 227 N.J. 422, 437 (2017) (citing Rule 3:21-10(b)(5); Acevedo, 205 N.J.

at 47 n.4). "[A]n illegal sentence is one that 'exceeds the maximum penalty . . .



3
    549 U.S. 270 (2007).
                                                                         A-5136-18T3
                                       6
for a particular offense' or a sentence 'not imposed in accordance with law.'"

Acevedo, 205 N.J. at 45 (quoting State v. Murray, 162 N.J. 240, 247 (2000)).

"That includes a sentence 'imposed without regard to some constitutional

safeguard.'" Zuber, 227 N.J. at 437 (quoting State v. Tavares, 286 N.J. Super.

610, 618 (App. Div. 1996)).

      Additionally, if an issue was previously decided on direct appeal, a

defendant is procedurally barred from relitigating that issue. R. 3:22-5. This is

so because of the public policy "to promote finality in judicial proceedings."

State v. McQuaid, 147 N.J. 464, 483 (1997). Further, it is well established that

when our courts enter a remand order directing a "specific amendment or

correction to [a] sentence imposed . . . such as . . . directing merger . . . the judge

need only implement our judgment. No further proceedings would be required."

Tavares, 286 N.J. Super. at 616.

      Here, it is uncontroverted that defendant was present at his original

sentencing and was afforded the opportunity to say to Judge Schroth whatever

he wanted to say. Further, it is evident that Judge Schroth had two choices when

considering whether defendant should serve his New Jersey sentence

consecutively or concurrently to his Maryland sentence. Judge Schroth chose

the former. In Collins I, we found defendant's argument that his New Jersey


                                                                               A-5136-18T3
                                          7
sentence should be modified to run concurrent to his Maryland sentence was

without merit. Accordingly, we entered a remand order limited to merger of

defendant's possession of CDS and possession with intent to distribute charges.

Given this procedural history, defendant is procedurally barred under Rule 3:22-

5 from renewing the argument that his New Jersey sentence should run

concurrent to his Maryland sentence, simply by labeling his 1989 sentence

"illegal." Likewise, since the 1993 resentence superseded the 1989 sentence,

the same analysis applies.

      To the extent defendant references Cunningham v. California, 549 U.S.

270 (2007) and argues Judge Schroth imposed an illegal sentence by improperly

finding aggravating and mitigating factors not found by the jury, we disagree.

Not only is Cunningham factually distinguishable from this case, but our courts

have consistently recognized that trial judges have broad sentencing discretion

as long as the sentence is based on competent credible evidence and fits within

the   statutory   framework.     State   v.   Dalziel,   182   N.J.   494,   500

(2005).   Additionally, judges must identify and consider "any relevant

aggravating and mitigating factors" that "are called to the court's attention[,]"

and "explain how they arrived at a particular sentence." State v. Case, 220 N.J.

49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). We


                                                                         A-5136-18T3
                                         8
are satisfied Judge Schroth adhered to these principles, that his findings of fact

concerning aggravating and mitigating factors were based on ample credible

evidence and that he applied the correct sentencing guidelines enunciated in the

Code, both in 1989 and on remand in 1993. Accordingly, we decline to find

defendant's sentence or resentence was illegal.

      To the extent we have not addressed defendant's remaining arguments, we

find they do not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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