                                NOT FOR PUBLICATION WITHOUT THE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-0610-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WILLIAM STOVALL,

     Defendant-Appellant.
_________________________

                   Submitted March 26, 2019 – Decided September 4, 2019

                   Before Judges Hoffman and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Indictment No. 91-12-1439.

                   William Stovall, appellant pro se.

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

PER CURIAM

          Defendant William Stovall appeals from the August 29, 2017 order that

denied his motion to correct an illegal sentence. In denying the motion, the trial
court stated the motion was moot because defendant "already exhausted [his]

appeal remedies and [his] post-conviction relief remedies." The trial court then

addressed each of defendant's arguments. We affirm the order on substantive

grounds.

                                     I

      Defendant was indicted in 1991 for attempting to procure weapons and

explosives in order to escape from prison. He was convicted by a jury in 1994

of all counts against him in the indictment. Relevant here, defendant was

convicted under count two of second-degree attempt to escape, N.J.S.A. 2C:5-1

and 2C:29-5(a), and under count four of second-degree attempt to procure

escape implements (firearms, ammunition, and explosives), N.J.S.A. 2C:5-1 and

2C:29-6(a)(2).1 We have set forth in detail the factual background of the case



1
   His other convictions included: second-degree conspiracy to escape, N.J.S.A.
2C:5-2 and N.J.S.A. 2C:29-5(a) (count one); second-degree attempt to possess
weapons (firearms) for unlawful purposes, N.J.S.A. 2C:5-1 and 2C:39-4(a)
(count six); second-degree attempt to possess weapons (destructive devices) for
unlawful purposes, N.J.S.A. 2C:5-1 and 2C:39-4(c) (count seven); third-degree
attempt to unlawfully possess weapons (handguns), N.J.S.A. 2C:5-1 and 2C:39-
5(b) (count eight); third-degree attempt to unlawfully possess a weapon (assault
firearm), N.J.S.A. 2C:5-1 and 2C:39-5(f) (count nine); third-degree attempt to
possess prohibited devices (explosives), N.J.S.A. 2C:5-1 and 2C:39-3(a) (count
ten); fourth-degree attempt to possess a prohibited device (silencer), N.J.S.A.
2C:5-1 and 2C:39-3(c) (count eleven); and fourth-degree possession of


                                                                        A-0610-17T4
                                         2
in our unreported opinion that affirmed defendant's convictions on direct appeal,

and do not have need to repeat it here. See State v. Stovall (Stovall I), No. A-

0850-94 (App. Div. Dec. 2, 1996).2

      In 1994, defendant was sentenced. Count one was merged into count two.

He was sentenced to an extended term of twenty years of imprisonment on count

two with a ten-year period of parole ineligibility.      This was to be served

consecutively to the sentence he was already serving.3 Defendant was sentenced

to a ten-year term of imprisonment on count four with a ten-year period of parole

ineligibility. This was to be served consecutive to count two.4 Thus, defendant's

aggregate term was thirty years in prison with a twenty-year period of parole

ineligibility.



prohibited devices (body-armor breaching or penetrating ammunition), N.J.S.A.
2C:39-3(f)(2) (count twelve).
2
  Defendant's petition for certification was denied. State v. Stovall, 149 N.J. 35
(1998). In 2016, we affirmed an order that denied defendant's petition for post-
conviction relief in an unreported opinion, State v. Stovall (Stovall II), No. A-
1162-13 (App. Div. Feb. 17, 2016). The Supreme Court denied his petition for
certification. State v. Stovall, 227 N.J. 213 (2016).
3
  He was serving a seventy-five year term with a thirty-six year period of parole
ineligibility.
4
   His sentences on the other counts ranged from eighteen months on counts
eleven and twelve to a ten-year term on count seven, all of which were to be
served concurrent to one another and concurrent to counts two and four.


                                                                          A-0610-17T4
                                        3
      The 1994 judgment of conviction incorrectly listed defendant's aggregate

term as twenty years. In Stovall I, we addressed defendant's arguments that his

sentence was excessive and illegal. We concluded the trial court was correct to

merge count one (conspiracy) into count two. Stovall I, slip op. at 17. However,

we vacated the sentence on count four because defendant was sentenced to ten

years under N.J.S.A. 2C:43-6(g), which concededly did not apply to a violation

of N.J.S.A. 2C:29-6(a)(2).5 Ibid. The sentence was vacated and remanded for

resentencing. Id. at 20.

      In 1997, defendant was resentenced to a twenty-year term on count two

with ten years of parole ineligibility to be served consecutively to the sentence

he then was serving. On count four, he was sentenced to a ten-year term to run

consecutively to count two. 6 However, the judgment of conviction provided the

aggregate custodial term was twenty years rather than thirty years. In 1998, an

assistant prosecutor wrote to the trial judge advising the judgment of conviction

should have said the total custodial sentence was thirty years, rather than twenty,




5
  We also remanded the sentence on count six for reconsideration in light of
State v. Latimore, 197 N.J. Super. 197, 221 (App. Div. 1984).
6
  He was resentenced on count six to a ten-year term with a five-year period of
parole ineligibility.
                                                                           A-0610-17T4
                                        4
with a fifteen-year period of parole ineligibility. Thereafter, the judgment of

conviction was amended to correctly reflect a total custodial term of thirty years.

      In 2016, defendant filed a motion to correct an illegal sentence and

supported it with multiple briefs. The motion was denied on August 29, 2017.

The trial court rejected defendant's argument that count four should have been

merged into count two because it reasoned each of the convictions "require[d]

elements that the other [did] not." The court noted, "an acquittal of conviction

under one statute [did] not preclude punishment under another statute from the

same act or transaction, provided that all the elements of the second offense

[were] still met." The court observed, "an attempt to escape and an attempt to

possess a weapon in an escape are clearly separate offenses and require different

facts." It rejected defendant's argument that the same evidence could not be

used to convict under separate counts. Because defendant was convicted under

separate counts, the court found the thirty-year aggregate sentence was "the

correct and appropriate sentence." The correction of the judgment to reflect an

aggregate term was a clerical correction.      This was not an increase in his

sentence. The trial court disagreed with defendant that the jury's verdict sheet

was ambiguous because the "second-degree charge [he was] sentenced to has

not been challenged or changed throughout [his] long procedural history." The


                                                                           A-0610-17T4
                                        5
trial court held that because defendant was convicted of an attempt to procure

weapons, the physical possession of them was not a material element of that

crime.

      On appeal, defendant raises the following issues:

            POINT I

            DEFENDANT'S MOTION WAS TIMELY.

            POINT II

            MERGER OF COUNT FOUR INTO COUNT TWO
            MUST BE HAD SINCE THE COURT FAILED TO
            INSTRUCT TO NOT RELY ON THE EVIDENCE
            PRESENTED TO PROVE COUNT TWO AS PROOF
            OF COUNT FOUR.

            POINT III

            IT WAS ILLEGAL FOR THE COURT TO
            SENTENCE ON THE SECOND DEGREE CHARGES
            WHEN THE JURY DISREGARDED THE COURT'S
            INSTRUCTION TO NOT FIND DEFENDANT
            GUILTY OF BOTH SECOND AND THIRD DEGREE
            OFFENSES OF THE SAME CRIME.

                  a. Ambiguity In Verdicts

                  b. The Rule of Lenity

            POINT IV

            THE SECOND DEGREE SENTENCE IMPOSED ON
            COUNT FOUR IS ILLEGAL PURSUANT TO THE
            FOURTEENTH      AMENDMENT     BECAUSE

                                                                      A-0610-17T4
                                       6
           DEFENDANT    NEVER     POSSESSED     THE
           IMPLEMENTS OF ESCAPE INSIDE THE PRISON.

           POINT V

           AN INCREASE IN SENTENCE AFTER ENTRY OF
           AN AMENDED JUDGMENT OF CONVICTION IS
           UNCONSTITUTIONAL PURSUANT TO THE
           DOUBLE JEOPARDY PROVISIONS OF THE
           FEDERAL AND STATE CONVICTIONS [SIC], AND
           MINIMAL DUE PROCESS.

                 a. Procedural Due Process,         Double
                 Jeopardy Concerns Generally

                 b. Substantive Due Process Implications

           POINT VI

           DEFENDANT     WAS     CONSTITUTIONALLY
           ENTITLED TO BE PRESENT FOR ANY
           RESENTENCING OR PROVIDE INPUT. THUS, HE
           REMAINS ENTITLED TO A RESENTENCING.

                 a. State Provisions

                 b. Applicable Federal Law

                                   II

     Whether a sentence is illegal is an issue of law that we review de novo.

See State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2015). "An illegal

sentence that has not been completely served may be corrected at any time

without impinging upon double-jeopardy principles." State v. Austin, 335 N.J.


                                                                      A-0610-17T4
                                        7
Super. 486, 494 (App. Div. 2000). "Our Supreme Court has defined 'an illegal

sentence [as] one that "exceeds the maximum penalty provided in the Code for

a particular offense" or a sentence "not imposed in accordance with law."'" State

v. Hyland, 452 N.J. Super. 372, 381 (App. Div. 2017) (quoting State v. Acevedo,

205 N.J. 40, 45 (2011)), aff'd as modified, 238 N.J. 135 (2019). "A sentence

'not imposed in accordance with law' includes a 'disposition [not] authorized by

the Code.'" Ibid. (quoting State v. Murray, 162 N.J. 240, 247 (2000)). Under

Rule 3:21-10(b), "an order may be entered at any time . . . correcting a sentence

not authorized by law including the Code of Criminal Justice."

      Defendant has not argued that his sentences exceeded the maximum

custodial terms as extended or that law did not authorize them. His arguments

are that the sentences are violative of the double jeopardy or due process clauses.

      We agree with the State that defendant could have raised any of these

issues in his prior appeals or in his PCR petition. Generally, we "will not

consider issues, even constitutional ones, which were not raised below." State

v. Galicia, 210 N.J. 364, 383 (2012) (citing Deerfield Estates, Inc. v. E.

Brunswick, 60 N.J. 115, 120 (1972)). Defendant has not raised any issues that

warrant further review of his sentence.




                                                                           A-0610-17T4
                                          8
      Defendant contends the trial court should have merged count four into

count two for sentencing, but the convictions were for separate offenses,

requiring proof of separate elements. Defendant was convicted under count two

of second-degree attempt to escape, contrary to N.J.S.A. 2C:5-1 and 2C:29-5(a).

As the trial court instructed, a conviction required:

            proof beyond a reasonable doubt that the defendant was
            confined in an institution on a charge or a conviction,
            that the defendant attempted to engage in conduct[,]
            which would result in his own removal from custody,
            that the defendant had no legal right to do so, and that
            the defendant acted knowingly.

Although ordinarily a crime of the third degree, it is elevated to second degree

where "there is proof beyond a reasonable doubt that the actor attempted to

employ force, threat, a deadly weapon or other dangerous instrumentality to

effect the escape."

      Defendant was convicted under count four of second-degree attempt to

procure escape implements (firearms, ammunition, and explosives) contrary to

N.J.S.A. 2C:5-1 and 2C:29-6(a)(2). Under this count, the State had to prove

beyond a reasonable doubt that defendant "was an inmate of an institution, that

the [d]efendant attempted to procure the weapons mentioned . . . that [the]

weapons might be useful for an escape, and that the [d]efendant acted both



                                                                        A-0610-17T4
                                        9
knowingly and unlawfully." When the attempt was to obtain "weapons" as

defined, then the offense was a second-degree offense rather than a third degree.

      Our Supreme Court stated that "[t]he Double Jeopardy Clause contains

three protections for defendants. It protects against (1) 'a second prosecution

for the same offense after acquittal,' (2) 'a second prosecution for the same

offense after conviction,' and (3) 'multiple punishments for the same offense.' "

State v. Miles, 229 N.J. 83, 92 (2017) (quoting North Carolina v. Pearce, 395

U.S. 711, 717 (1969)). The Court noted that what was common to the three

protections "is the concept of 'same offense.'" Ibid. "Accordingly, a prime

concern when reviewing a double-jeopardy claim is 'whether the second

prosecution is for the same offense involved in the first.'" Id. at 92-93 (quoting

State v. Yoskowitz, 116 N.J. 679, 689 (1989)). In Miles, the Court adopted the

"same-elements test as the sole double-jeopardy analysis" and instructed that it

would not "recognize the same-evidence test as a measure of whether two

offenses constitute the same offense." Id. at 96.

      The Double Jeopardy Clause was not violated here. The elements of the

offenses under counts two and four are plainly distinct; they do not involve the

same elements.    One is an attempt by defendant to remove himself from

detention; the other is an attempt to procure weapons while in custody.


                                                                          A-0610-17T4
                                       10
Applying Miles, there is no Double Jeopardy Clause violation and, of course, no

necessity to merge the counts for purposes of sentencing. Merger was not

required by N.J.S.A. 2C:1-8.

      Defendant's argument that the same evidence was used to convict him

under counts two and four is incorrect in light of the separate elements for these

counts, and is out of step with Miles because that analysis focuses on whether

the elements of the crimes are the same. We reject defendant's argument that

the attempt to procure weapons—that elevated the crimes to second degree—

somehow required merger. That fact did not take what otherwise were separate

crimes (attempt to escape and attempt to procure weapons) and meld them into

one. There is no evidence the legislature intended that result nor does it make

any logical sense.

      Similarly lacking is defendant's argument that a conviction under count

four required the actual possession of a weapon. That is not an element of the

offense, particularly when what is charged is an attempt. When an attempt is

involved, the focus is on the defendant's intent. State v. Robinson, 136 N.J. 476,

483 (1994). "[O]ne of the main purposes of the Code's criminal attempt statute,

N.J.S.A. 2C:5-1, is to ensure that a person who acts with the purpose of




                                                                          A-0610-17T4
                                       11
committing a crime does not escape punishment merely because the crime was

not completed." Ibid. Actual possession is not required.

      Defendant argues that the trial court increased his sentence when it

corrected a clerical error on the judgment of conviction. He does not seem to

dispute that the trial judge sentenced him to a twenty-year term on count two

and a ten-year term on count four to run consecutively.          Despite this, the

judgments of conviction said that the total term was twenty years. This error

was corrected in 1998. By simple math, the aggregate term was thirty years.

This is what the judgment of conviction was corrected to say. There was no

increase in his sentence. The trial court had the ability to correct a clerical-type

error "on its own initiative or on the motion of any party . . . ." R. 1:13-1; see

State v. Matlack, 49 N.J. 491, 501-502 (1967) (providing that "[n]o fundamental

right of defendant will be violated if an inadvertent clerical-type error is

corrected, and he receives the sentence which the trial judge intended him to

receive"). "It is firmly established that the sentencing transcript is 'the true

source of the sentence.'" State v. Walker, 322 N.J. Super. 535, 556 (App. Div.

1999) (quoting State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956)).

There was no requirement in the Rule that defendant be present when the clerical

correction was made.


                                                                            A-0610-17T4
                                        12
      Defendant contends the rule of lenity should apply to the verdict sheet

because the jury checked both boxes under counts two and four and that this

should be used to lower his convictions to third-degree offenses.

            The rule of lenity is an important principle of statutory
            construction; if a statutory ambiguity cannot be
            resolved by analysis of the relevant text and the use of
            extrinsic aids, the rule requires that the ambiguity be
            resolved in favor of the defendant. The rule of lenity
            derives from the principle that "[n]o one shall be
            punished for a crime unless both that crime and its
            punishment are clearly set forth in positive law."

            [State v. Regis, 208 N.J. 439, 451-52 (2011) (citations
            omitted) (quoting In re DeMarco, 83 N.J. 25, 36
            (1980)).]

Our Supreme Court has made clear that the rule is limited in its application.

"[T]he rule of lenity is applied only if a statute is ambiguous, and that ambiguity

is not resolved by a review of 'all sources of legislative intent.'" Id. at 452

(quoting State v. D.A., 191 N.J. 158, 165 (2007)).

      The rule does not apply because the ambiguity of a statute is not in issue

in this case. In addition, defendant did not previously raise this issue although

he had the opportunity to do so in his direct appeal. Although we are not

required to consider the issue, see Galicia, 210 N.J. at 383, we agree with the

trial judge that the checked boxes indicated the jury agreed that the State proved

second-degree offenses. There was no ambiguity reflected in the transcript. The

                                                                           A-0610-17T4
                                       13
jury foreperson announced the jury's verdict on both counts as being in the

second degree and the jury thereafter was polled, indicating agreement.

      None of defendant's issues raised any due process concerns. We conclude

that defendant's further arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




                                                                          A-0610-17T4
                                      14
