                                NOT FOR PUBLICATION WITHOUT THE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-4829-17T4


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HERSHEL M. BOXTON, a/k/a
DANNY BASS, MIKE BOXTON,
RAHEEM BOXTON, HERSHEL
STEWART, MIKE WALKER,
and HERSHAL BOXTON,

     Defendant-Appellant.
_____________________________

                    Submitted February 12, 2019 – Decided March 11, 2019

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 97-08-3405.

                    Hershel Boxton, appellant pro se.

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Matthew E.
                    Hanley, Special Deputy Attorney General/Acting
                    Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant appeals from an order of the Law Division dated May 11, 2018,

which denied defendant's motion to correct what he claims is an illegal sentence.

We affirm the denial of defendant's motion, but remand the matter to the trial

court for entry of an amended judgment of conviction (JOC).

      In 1997, an Essex County grand jury returned indictment No. 97-08-3405,

which charged defendant with various offenses arising from burglaries

committed on March 25, 1997, a robbery and murder committed on March 30,

1997, and the unlawful possession of a handgun on April 9, 1997. The trial

court severed four charges and in 1998, defendant was tried before a jury on the

remaining charges.

      The jury found defendant guilty of third-degree conspiracy to commit

burglary and theft, N.J.S.A. 2C:5-2, 2C:18-2, 2C:20-3(a) (count one); third-

degree burglary, N.J.S.A. 2C:18-2 (count four); third-degree theft by unlawful

taking, N.J.S.A. 2C:20-3(a) (count five); third-degree unlawful possession of a

weapon    (handgun),   N.J.S.A. 2C:39-5(b) (count eight);         second-degree

conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1 (count nine); first-

degree robbery, N.J.S.A. 2C:15-1 (count ten); second-degree reckless

manslaughter of Emmett Green, N.J.S.A. 2C:11-4(b)(1), a lesser-included


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                                       2
offense of murder, (count eleven); first-degree felony murder, N.J.S.A. 2C:11-

3(a)(3) (count twelve); third-degree unlawful possession of a weapon (handgun),

N.J.S.A. 2C:39-5(b) (count thirteen); second-degree possession of a weapon

(handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count fourteen); and

third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b)

(count fifteen). Defendant was found not guilty of second-degree conspiracy to

commit murder, the murder of Greene, and the aggravated manslaughter of

Greene.

      Thereafter, defendant pled guilty to the severed charges: third-degree

burglary, N.J.S.A. 2C:18-2 (count two); third-degree theft by unlawful taking,

N.J.S.A. 2C:20-3(a) (count three); and third-degree unlawful possession of a

weapon (shotgun), N.J.S.A. 2C:39-5(c)(1) (counts six and seven).

      At sentencing, the judge merged various offenses and sentenced defendant

to concurrent five year terms on counts two, three, four, five, six, seven, eight,

thirteen, and fifteen. The judge also sentenced defendant on count twelve

(felony murder) to life imprisonment, with thirty years of parole ineligibility,

and ordered that the sentence be served consecutively to the other sentences.

The judge filed a JOC dated May 19, 1998. Defendant appealed. We affirmed




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                                        3
defendant's convictions. State v. Boxton, No. A-1456-98 (App. Div. Jan. 31,

2000).

      On April 27, 2004, defendant filed a petition for post-conviction relief

(PCR), alleging ineffective assistance of counsel. On March 26, 2007, the Law

Division denied the petition and defendant appealed. We affirmed the denial of

PCR. State v. Boxton, No. A-0855-07 (App. Div. Feb. 18, 2010). In our

opinion, we stated that the trial record established that

            on March 25, 1997, Tyrus Sheppard burglarized two
            residences in Irvington, while defendant and his
            girlfriend, Sonia Christmas, remained in a car as
            lookouts. During the course of the burglaries, Sheppard
            took from the home of Shelton Wyche a .38 caliber
            handgun.

                  On March 30, 1997, Mark Howard drove
            defendant and Sheppard around Newark looking for a
            source for drugs. Defendant was armed with a .357
            magnum handgun, and Sheppard was armed with the
            .38 caliber gun stolen from Wyche. At approximately
            4:00 p.m., while driving down South 9th Street in
            Newark, the men saw what appeared to be drug dealing
            in an alley next to a blue abandoned house. Howard
            parked, and first Sheppard and then defendant alighted
            from the vehicle and proceeded into the alley. Several
            minutes later, a shot was heard by local residents
            Baleegh McCrimmon, Cynthia Jones, and Janette
            Muldrow, as well as Howard. Defendant was seen
            running from the alley, followed by Sheppard. They
            proceeded into the abandoned house and, after
            determining that the victim, Emmett Green, who had
            been selling drugs through the window, was dead,

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                                         4
            defendant took $300 in cash from Green's hand and
            Sheppard took Green's stash of drugs. The two men
            then fled the building, entered Howard's car, and
            instructed him to drive away. During the course of the
            drive, defendant, Sheppard and Howard divided the
            cash and the drugs.

            [Slip op. at 4-5.]

      In August 2017, defendant filed a pro se motion to correct what he claimed

was an illegal sentence. In the accompanying brief, defendant argued that he

should not have been sentenced to a life sentence, with thirty-years of parole

ineligibility, because he was convicted of the felony murder, not knowing and

purposeful murder. He also argued that the JOC should be amended to reflect

that defendant was not convicted of conspiracy to commit murder.

      The Law Division entered an order dated May 11, 2018, which denied

defendant's motion. The order states that defendant's motion was procedurally

barred by Rule 3:21-10(a) because it had not been filed within sixty days after

the date of the JOC, and none of the exceptions in Rule 3:21-10(b) apply. This

appeal followed.

      On appeal, defendant raises the following arguments:

            POINT I
            APPELLANT SUBMIT[S] THAT THE TRIAL
            COURT DID NOT BASE [ITS] FINDING OF FACT
            AND CONCLUSION OF LAW ON THE MERITS OF
            HIS ILLEGAL SENTENCE PETITION BUT

                                                                        A-4829-17T4
                                       5
            INSTEAD MISQUOTED THE RELIEF SOUGHT ON
            POST CONVICTION RELIEF AND DENIED THE
            PETITION IN VIOLATION OF APPELLANT'S DUE
            PROCESS UNDER THE NEW JERSEY STATE
            CONSTITUTION.

            POINT II
            APPELLANT SUBMIT[S] THAT THE TRIAL
            COURT DID NOT BASE [ITS] FINDING OF FACT
            AND CONCLUSION OF LAW ON THE MERITS OF
            HIS JUDGMENT OF CONVICTION SHOULD BE
            AMENDED TO REFLECT THAT THE APPELLANT
            WAS NOT CONVICTED OF CONSPIRACY TO
            COMMIT MURDER CONTRARY TO THE FINAL
            CHARGES IN COUNT NINE AT TO 2C:15-1 AND
            2C:11-3 IN VIOLATION OF APPELLANT'S DUE
            PROCESS UNDER THE NEW JERSEY STATE
            CONSTITUTION.

      We have considered defendant's arguments in light of the record and the

applicable law. We conclude that defendant's arguments are entirely without

merit. The Law Division judge correctly found that defendant's motion to

correct what he calls an illegal sentence is barred by Rule 3:21-10(a) because it

was not filed within sixty days after the date of the JOC, and none of the

exceptions in Rule 3:21-10(b) apply. As noted, the JOC in this matter is dated

May 19, 1998. His motion was filed in August 2017.

      Defendant essentially argues that the exception in Rule 3:21-10(b)(5)

applies because his sentence was not authorized by the Code of Criminal Justice.

He asserts that penalty for murder is life imprisonment, and he should not have

                                                                         A-4829-17T4
                                       6
received a life sentence because he was found guilty of felony murder. We

disagree.   N.J.S.A. 2C:11-3(a)(3) states that "criminal homicide constitutes

murder when . . . the actor . . . is engaged in the commission of . . . attempting

to commit robbery . . . and in the course of such crime . . . any person causes the

death of a person other than one of the participants."

      Thus, under the Code, felony murder "constitutes murder" and the penalty

for murder is between thirty years and life imprisonment. N.J.S.A. 2C:11-

3(b)(1). Defendant's sentence for felony murder is expressly authorized by the

Code. Therefore, the Law Division correctly determined that defendant's motion

for a reduction of his sentence was barred by Rule 3:21-10(a).

      Defendant further argues that his JOC should be amended to reflect that

he was not found guilty of conspiracy to commit murder. The JOC states that

defendant was found guilty of second-degree conspiracy to commit murder and

robbery, as charged in count nine.

       The verdict sheet indicates that the jury was asked to determine whether

defendant was guilty of second-degree conspiracy to commit murder, and

whether he was guilty of second-degree conspiracy to commit robbery. The jury

found defendant not guilty of conspiracy to commit murder, but guilty of

conspiracy to commit robbery.


                                                                           A-4829-17T4
                                        7
     However, as written, the JOC could be interpreted to mean that defendant

was found guilty of both conspiracy to commit murder and conspiracy to commit

robbery. Therefore, we remand the matter to the trial court for entry of an

amended JOC, stating that defendant was convicted on count nine of conspiracy

to commit robbery.

     Affirmed, but remanded to the trial court for entry of a corrected JOC in

conformance with this opinion.




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