                                NOT FOR PUBLICATION WITHOUT THE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-1960-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DWAYNE KNIGHT, a/k/a
STONEY KNIGHT,

     Defendant-Appellant.
_____________________________

                   Submitted November 14, 2019 – Decided January 16, 2020

                   Before Judges Nugent and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 90-11-5153.

                   Dwayne Knight, 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 Dwayne Knight appeals from the September 12, 2018 order

that denied his motion under Rule 3:21-10(b)(5) to correct an illegal sentence.

We affirm the order.

        In 1991, defendant was convicted of multiple offenses, including second -

degree burglary, N.J.S.A. 2C:18-2; fourth-degree aggravated assault, N.J.S.A.

2C:12-1(b)(4); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two

counts of first-degree robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A.

2C:11-3(a)(3); first-degree murder, N.J.S.A. 2C:11-3(a)(1); third-degree

possession of a prohibited weapon, N.J.S.A. 2C:39-3(b); third-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(c)(1);

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

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

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a).

        The convictions arose from a homicide in connection with a robbery.

              [D]efendant, along with co-defendants Leon Durham
              and Thomas Dollard, accosted two persons in the
              stairway of an apartment building on Irving Turner
              Boulevard in Newark, unsuccessfully sought to rob
              them, and then forced them to accompany the three
              defendants while they conducted a home invasion for
              the purpose of armed robbery and to obtain drugs.
              During the home invasion, one of the residents was

                                                                         A-1960-18T4
                                        2
              fatally shot in the chest by Dollard, using a sawed-off
              shotgun carried to the residence by Knight. At the
              conclusion of the incident, Knight sought to kill one of
              the two people that the three defendants had initially
              accosted. However, the victim escaped by diving
              through a closed window, breaking his wrist. Defendant
              was identified as one of the perpetrators when the bag
              he had utilized to carry the shotgun was traced to the
              son of defendant's girlfriend. He subsequently
              confessed to his participation in the crime.

              [State v. Knight, No. A-6408-06 (App. Div. Sept. 15,
              2008) (slip op. at 3).] 1

        Defendant was sentenced to a life term with a period of parole

ineligibility. The sentencing court merged the purposeful and knowing murder

count into the felony murder count for sentencing. Defendant was sentenced on

the felony murder count to term of life with a thirty-year period of parole

ineligibility. Defendant's convictions were affirmed on appeal and the Supreme

Court denied certification. See State v. Knight, 136 N.J. 296 (1994). Defendant

filed two petitions for post-conviction relief, both of which were denied. These

orders were affirmed on appeal and certification was denied. State v. Knight,

157 N.J. 646 (1999); State v. Knight, 197 N.J. 476 (2009).               Defendant




1
    We cite to this unreported decision only because it involves this defendant.



                                                                           A-1960-18T4
                                         3
unsuccessfully filed for habeas corpus relief in the federal District Court, and

the Third Circuit Court of Appeals.2

      Defendant filed a motion in 2018 to correct what he alleged to be an illegal

sentence. He argued his sentence was illegal "because instead of merging

purposeful and knowing murder into felony murder[,] the trial court should have

merged felony murder into the conviction for purposeful and knowing murder

pursuant to State of New Jersey v. Jermile Omar Mayo, [Nos. A-4078-97; A-

4160-97 (App. Div. Jan. 19, 2000) (slip op. at 11).]"

      The trial court denied defendant's motion, finding the sentence of "a 'term

of life' with [thirty] years parole ineligibility is not an illegal sentence" and that

merging "purposeful and knowing murder with felony murder had no impact on

defendant's overall sentence[.]"

      Defendant raises this issue on appeal:

             THE TRIAL COURT ERRED WHEN IT DENIED
             DEFENDANT'S MOTION TO CORRECT AN
             ILLEGAL SENTENCE PURSUANT TO RULE 3:21-
             10(B)(5)[.]




2
    We have omitted description of these proceedings because none of the
underlying orders was included in the appendix nor do those proceedings appear
to relate to the issue on appeal raised by defendant.
                                                                              A-1960-18T4
                                          4
      Whether a sentence is illegal is an issue of law that we review de novo.

State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2016). "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. Super.

486, 494 (App. Div. 2000). Recently, our Supreme Court has reiterated "[t]here

are two categories of illegal sentences: those that exceed the penalties authorized

for a particular offense, and those that are not authorized by law." State v.

Hyland, 238 N.J. 135, 145 (2019) (citing State v. Schubert, 212 N.J. 295, 308

(2012)). These categories "have been 'defined narrowly.'" Ibid. (quoting State

v. Murray, 162 N.J. 240, 246 (2000)).         "[E]ven sentences that disregard

controlling case law or rest on an abuse of discretion by the sentencing court are

legal so long as they impose penalties authorized by statute for a particular

offense and include a disposition that is authorized by law." Id. at 146. 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's argument is that the felony murder conviction should have

merged into the purposeful and knowing murder conviction not the other way

around. See State v. Watson, 261 N.J. Super. 169, 181 (App. Div. 1992)

(providing that "the felony murder convictions should have merged into that for


                                                                           A-1960-18T4
                                        5
purposeful and knowing murder"). Both offenses, however, carry the same

sentence: thirty years to life with a thirty-year period of parole ineligibility. The

order in which the judge merged the two offenses is irrelevant.

      Defendant does not dispute the sentence was authorized by the statute and

that it did not exceed the maximum custodial term. 3 Even if there were an error

in terms of the order in which the judge described the merger, this error did not

constitute an illegal sentence. See Rule 3:21-10(b)(5). See also State v. Eckert,

410 N.J. Super. 389, 408 (App. Div. 2009) (distinguishing between a sentencing

error and an illegal sentence). 4 Thus, the trial court correctly denied defendant's

motion to correct an illegal sentence.

      Affirmed.




3
   Defendant relies on the same unreported decision he cited before the trial
court. An unreported decision does not constitute precedent. It is improper to
cite and rely upon an unreported decision except as allowed by Rule 1:36-3.
4
   Defendant is out of time to correct any sentencing error about the greater
offense being merged into the lesser. See R. 3:21-10(a).
                                                                             A-1960-18T4
                                         6
