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.

NOT FOR PUBLICATION WITHOUT THE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.
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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 
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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]." 
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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 postconviction 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 
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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 
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[-]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. 

CALIFORNIA3 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).
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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 
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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 
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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.