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STATE v. McGRIFF, A-6075-10T3. (2013)

Court: Superior Court of New Jersey Number: innjco20130312301 Visitors: 8
Filed: Mar. 12, 2013
Latest Update: Mar. 12, 2013
Summary: NOT FOR PUBLICATION PER CURIAM. Defendant Lawrence McGriff appeals from an order dated December 10, 2010, denying his motion to correct an illegal sentence. For the reasons that follow, we affirm. On January 27, 1997, Ramon Medina was shot and killed during a robbery of a gas station. A Union County grand jury returned Indictment No. 97-07-0733 charging defendant with Medina's murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); first-degr
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NOT FOR PUBLICATION

PER CURIAM.

Defendant Lawrence McGriff appeals from an order dated December 10, 2010, denying his motion to correct an illegal sentence. For the reasons that follow, we affirm.

On January 27, 1997, Ramon Medina was shot and killed during a robbery of a gas station. A Union County grand jury returned Indictment No. 97-07-0733 charging defendant with Medina's murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); first-degree armed robbery, N.J.S.A. 2C:15-1 (count five); two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts six and seven); and two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts eight and nine).

On March 12, 1999, defendant pled guilty to count one, which was amended to aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1); count five (first-degree armed robbery); and count six (second-degree possession of a handgun for an unlawful purpose). In exchange for the guilty pleas, the State agreed to recommend a thirty-year sentence with fifteen years of parole ineligibility on count one; a consecutive twenty-year sentence with ten years of parole ineligibility on count five; a concurrent ten-year sentence with five years of parole ineligibility on count six; and to dismiss the remaining counts of the indictment.

During the plea hearing, defendant testified he shot Medina four times. In addition, in response to questions from the court, defendant testified:

Q. Was there any promise made to you other than the State is going to recommend that the other counts of the indictment be dismissed and that you receive on Count 1, 30 years with 15 years without parole eligibility, and on the robbery, which is Count 5, that you receive a 20-year sentence with 10 years without parole eligibility to run consecutive to the sentence on Count 1? So, in other words, we are talking about a total of 50 years with 25 years without parole eligibility? A. Yes, Ma'am. Q. Is that the recommendation? A. Yes. . . . . Q. Do you understand that you had faced, if you had gone to trial and were convicted on the murder and the felony murder, life without parole for 30 years and, in fact, that is what I gave your codefendant, who was convicted in this court. You understand that? A. Yes, Ma'am. . . . . Q. So if you had gone to trial and been convicted of the murder the probable sentence you would have received would have been a life sentence with 30 years without parole, but the minimum you could have received would have been 30 years without parole. Do you understand that? A. Yes.

On July 2, 1999, the court sentenced defendant in accordance with the negotiated plea agreement. On count one (aggravated manslaughter), defendant was sentenced to a thirty-year prison term with a fifteen-year period of parole ineligibility; on count five (armed robbery), he was sentenced to a consecutive twenty-year term with ten years of parole ineligibility; and on count six (possession of a handgun for an unlawful purpose), the court imposed a concurrent ten-year term with five years of parole ineligibility.

Defendant appealed his sentence, and the matter was placed on a sentencing calendar pursuant to Rule 2:9-11. On October 15, 2001, defendant's attorney argued that the consecutive sentences were an abuse of discretion because "it was really one ongoing episode." In response, the State argued "this was really a robbery that could have ended once the victim gave the money over to the defendant." We found "no misapplication of discretion" and affirmed defendant's sentence. The Supreme Court denied defendant's petition for certification on March 26, 2002. State v. McGriff, 171 N.J. 445 (2002).

Thereafter, defendant filed a petition for post-conviction relief (PCR) claiming that he should be allowed to withdraw his guilty pleas because he was denied the effective assistance of counsel. Following an evidentiary hearing, the trial court denied defendant's petition for PCR. On appeal, we affirmed the denial in an unreported opinion, State v. McGriff, No. A-2261-05 (App. Div. Mar. 23, 2010), and the Supreme Court denied defendant's petition for certification. 203 N.J. 93 (2010).

Defendant's initial motion to correct an illegal sentence was denied on June 29, 2006. Defendant appealed and the matter was placed on an oral argument calendar. In an order dated November 12, 2008, we noted defendant's motion was denied without prejudice, and we afforded defendant the opportunity to file a new motion in the Law Division within sixty days of the entry of our order.

Thereafter, defendant filed a pro se motion dated December 17, 2008, to correct an illegal sentence. The matter was argued on December 10, 2010, and the trial court denied defendant's motion. The court found that defendant received an appropriate sentence for the crimes he committed, and his sentence was not illegal.

On appeal, defendant argues the order denying his motion to correct an illegal sentence should be reversed, and he should be resentenced. We do not agree.

"[A]n illegal sentence is 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. Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247 (2000)). In this case, it is clear that defendant's thirty-year sentence on count one is within the ten-to-thirty-year permissible range for aggravated manslaughter, N.J.S.A. 2C:11-4(c); his twenty-year sentence on count five does not exceed the ten-to-twenty-year range for first-degree crimes, N.J.S.A. 2C:43-6(a)(1); and his ten-year sentence on count six is within the five-to-ten-year range for second-degree crimes, N.J.S.A. 2C:43-6(a)(2). Accordingly, the trial court did not impose an illegal sentence. Moreover, it is equally clear that defendant received the sentence he bargained for; and we affirmed his aggregate sentence on October 15, 2001.

In view of the foregoing, the order denying defendant's motion to correct an illegal sentence is affirmed.

Source:  Leagle

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