SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3060- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. ERIK RE' VOAL, Defendant-Appellant.

______________________ _

Submitted April 9, 2024

– Decided May 2, 2024 Before Judges Smith and Torregrossa-O'Connor. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 94

- 05 -0578. Erik Re 'V oal, appellant pro se. Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Leandra L. Cilindrello, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant, Erik Re'Voal, appeals the March 1, 2022 order den ying his motion to correct an illegal sentence, pursuant to Rule 3:21-10(b)(5). The NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3060

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motion judge found defendant's claims replicated is sues previously raised and rejected in his prior state and federal appeals and petitions and otherwise lack ed substantive merit. We affirm on the same procedural grounds.
I. A. In 1998, defendant was sentenced to life imprisonme nt with thirty years of parole ineligibility after a jury convicted him of first-degree murder and related firearms offenses. The charges arose from a 1993 fatal shooting during a drug transaction in Paterson. Defendant proceede d to trial after rejecting a plea offer to a reduced charge of aggravated manslau ghter with a recommended sentence of twenty-five years' imprisonment with tw elve-and-a-half years' parole ineligibility. At the last pretrial confere nce, defendant's trial counsel represented that he reviewed the evidence and plea offer with defendant , who then rejected the plea. The trial court expressly inquired, "[Defendant] does understand the consequences he faces if convicted o f murder in the firstdegree?" Counsel acknowledged the mandatory thirty -year parole disqualifier, and defendant confirmed he understood. Defendant a lso affirmed his awareness that, by contrast, aggravated manslaughter carried a maximum sentence of thirty
years. The court then stated, "All right. As long as he un derstands what the3 A- 3060

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parameters are. It's obviously his right to have a trial. It’s a very favorable resolution, if the person is guilty. But, of cours e, he's maintaining his innocence." The trial court, to avoid "Monday morn ing quarterbacking should [defendant] be found guilty of murder," confirmed t hat defendant rejected the plea and proceeded to trial. The record shows that the victim, Bernard "Willie" Green, and his associate, Anthony Fields, were selling drugs on a streetcorner with a friend , Charneice Forbes, positioned nearby as lookout. Fields testified that an individual, then unknown to them but later identified as defendant by Fields and other witnesses, drove up and held up two fingers s ignaling his desire to purchase "two base" of crack cocaine. As Green app roached, the car pulled away. Green and the others grew suspicious, and, w hen the car returned, asked another friend to position his car to block defenda nt's car in case defendant attempted to do "something funny." Green approache d the driver’s window as Fields walked around the vehicle, suspecting the dr iver was possibly law enforcement due to a police decal on the window. C laiming he saw the driver reach under the seat and pull out a revolver, Field s yelled, "watch out he's got a gun" and started to run away when he heard a gunsho t. He turned and saw the4 A- 3060

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victim lying in the street and the driver pointing the gun ou t the window. Green died from one gunshot to the head. Forbes ' testimony was only partially consistent with Fields ' account. She recalled that when the car returned, Fields approached the driver and "punched" or "reached in like he was going to hit" the driver. The driv er then moved away and "came back up" after which time she heard the s hot. She looked and saw Willie Green on the ground before leaving to find G reen's mother. Forbes described the car and the driver to police, and, la ter, while at the police station, identified defendant as the shooter when he walked in the door with police. Forbes claimed she spoke to defendant and accused h im of shooting Green, to which defendant responded that he "would do it agai n." The police located defendant after tracing the license plate to the ca r's owner who advised she loaned the car to defendant and directed police to his location. Fields and others identified both the car and the defendant, and the j ury found defendant guilty on all counts. At sentencing, the court applied aggravating factor s one and two , N.J.S.A. 2C:44-1(a)(1) and (2), concerning the nature of the offense and the ha rm inflicted on the victim , describing the offense as a point-blank shooting of a particularly vulnerable, unarmed victim. The court applied aggravating factor5 A- 3060

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three, N.J.S.A. 2C:44 1(a)(3), citing the risk of reoffendi ng, and nine, N.J.S.A. 2C:44-1(a)(9) , finding a specific need to deter defendant as well as others. The court acknowledged defendant’s lack of prior record and applied mitigating factor seven, N.J.S.A. 2C:44-1(b)(7). Rejecting mitigating factor s three, four, five, and eight, N.J.S.A. 2C:44-1(b)(3) to (5), and (8), the court found nothing about the victim’s conduct leading up to the shooti ng that excused, justified, or induced defendant's conduct. Similarly, the court found defendant's drug use did not justify his behavior, but instead increased the risk of re-offense. Determining that the aggravating factors substantia lly outweighed the mitigating factors, the court, after merger, imposed a life sentence with thirty years' parole ineligibility on the murder count and a concurrent term of five years' imprisonment with two-and-a-half years of pa role ineligibility on the firearm charge.
B. We denied defendant's direct appeal in 2001, affirmi ng both the length of the sentence and the sentencing court's application of aggravating and mitigating factors. State v. Re'Voal, No. A- 2197 -98 (App. Div. Mar. 14, 2001) , certif. denied, 171 N.J. 41 (2002). Defendant petitioned for post-conviction relief (PCR) in April 2002, raising ineffective assistance of counsel, including his6 A- 3060

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claim that he was never advised that his maximum ex posure was life in prison. Following an evidentiary hearing in which defense c ounsel testified that he informed defendant of his sentencing exposure, the PCR judge issued a twentysix -page opinion denying defendant's petition, which t his court affirmed. State v. Revoal, No. A-6026-05 (App. Div. Jan. 30, 2008), certif. denied, 195 N.J. 420 (2008). 1 Subsequently, on September 17, 2008, defendant file d a petition for habeas corpus in the federal district court raising various ineffective assistance of counsel and due process claims, including again his claim that he was not advised of his sentencing exposure before rejecting the plea offer. Re 'Voal v. Ricci, No. 08-4649, 2011 U.S. Dist. LEXIS 10074 (D. N.J. Feb. 1, 2011). The District Court rejected the habeas petition, findin g its claims had already been addressed on PCR and denied. Id. at * 19

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. On July 13, 2021, twenty-three years after sentencing, defe ndant filed the present motion to correct what he casts as an illegal sentence pursuant to Rule 3:21 -10(b)(5). Echoing his past challenges, defendant claimed violation of his

1 The PCR court's opinion was not provided in the app endix, but the decisions on state PCR appeal and federal habeas corpus petition explored and affirmed th e PCR motion decision.7 A- 3060

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due process rights because the trial court did not conduct a "pretrial memorandum hearing" under Rule 3:9 -1(f), again asserting that he was not advised of his "maximum exposure" to life imprisonm ent before rejecting the plea offer. As he did in his PCR and habeas petiti ons, defendant urges that had he known he faced a potential life sentence, he wou ld not have accepted the State's plea offer. Defendant again challenged the sentencing court's consideration of aggravating and mitigating factors

. On March 1, 2022, following oral argument, the motion judge denied def endant's motion in a comprehensive oral opinion addressing each of defen dant's substantive claims. On appeal, defendant offers the following arguments f or our consideration:

POINT I
THE TRIAL COURT ERRED WHEN IT CONCLUDED THAT DEFENDANT'S SENTENCE SHOULD NOT BE CONSIDERED FOR RESENTENCING BECAUSE THE SENTENCE EXCEEDED THE PENAL[TY] AUTHORIZED BY THE STATUTE AND THAT IS NOT IN ACCORDANCE WITH N.J. STATE LAW AS THE AGGRAVATING AND MITIGATING FACTORS FOUND BY THE TRIAL COURT WHICH WERE NOT SUPPORTED BY THE RECORD U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PAPR. 10 (1947).8 A- 3060

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THE TRIAL COURT ERRED WHEN IT RULED THAT DEFENDANT'S DUE PROCESS WAS NOT VIOLATED UNDER BOTH THE FOURTEENTH AMENDMENT OF THE U.S. CONST. AMEND. XIV, AND ART. 1 & PARA. OF THE N.J. CONST. (1947) REGARDING HIS MAXIMUM SENTENCE EXPOSURE TO R. 3:9-1(F).
POINT III
THE CUMULATIVE E FF ECT OF THE ERRORS, COMBINED WITH TRIAL COUNSEL'S OMISSIONS, DEPRIVED DEFENDANT OF A FAIR TRIAL

. (N ot raised below.) We find defendant's claims are not cognizable under Ru le 3:21 -10(b)(5) and are otherwise procedurally barred.
II. Rule 3:21 -10(b)(5) provides that "[a] motion may be filed an d an order may be entered at any time . . . correcting a sente nce not authorized by law including the Code of Criminal Justice . . . ." Cl aims asserting the illegality of a sentence are reviewed de novo, State v. Nance, 22 8 N.J. 378, 393 (2017), as are questions of law regarding whether claims are p rocedurally barred. See State v. Robinson, 217 N.J. 594, 603-04 (2014). Our Crim inal Code does not define what constitutes an "illegal sentence," but our cou rts recognize "two categories of illegal sentences: those that exceed the penalt ies authorized for a particular9 A- 3060

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offense, and those that are not authorized by law." State v. Hyland, 238 N.J. 135, 145 (2019). These categories "have been 'defi ned narrowly.'" I bi d. (quoting State v. Murray, 162 N.J. 240, 246 (2000)) . Here, neither defendant's attacks on the excessiveness of his sentence and ap plication of sentencing factors nor his challenge to pretrial procedure war rant review under Rule 3:21

- 10(b)(5). No alternative route for review exists as defendant 's sentencing arguments were raised and resolved in prior proceed ings, and the claims regarding the pretrial conference, to the extent no t previously addressed, are time-barred.
A. First, defendant's challenge to the length of his s entence does not touch upon its "legality" within the meaning of Rule 3:21 -10(b)(5). It is well-settled that "mere excessiveness of sentence otherwise with in authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground of post -conviction relief and can only be raised on direct appeal from the conviction." St ate v. Clark, 65 N.J. 426, 437 (1974). Defendant's sentence, falling at the top, but within, the statutorily authorized range was previously upheld on direct ap peal. Consequently, the claim is barred from reconsideration here. See Sta te v. Njango, 247 N.J. 533,10 A- 3060

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544 (2021) (recognizing that full and fair litigati on of an issue becomes law of the case preventing its relitigation in the same or subsequent proceeding)

. Likewise, defendant's arguments regarding the appli cation of sentencing factors , previously addressed on direct appeal, fall beyond the purview of Rule
3:21 -10(b)(5). I f a sentence falls within the statutory range, "issue s relating to the determination of aggravating and mitigating fac tors, the balancing thereof and the conclusions resulting from that balancing g enerally deal with claims of 'excessiveness', as opposed to 'illegality . . . . '" State v. Ervin, 241 N.J. Super. 458, 472 (App. Div. 1989). More specifically:

While identification of the applicable aggravating and mitigating factors may perhaps lend itself to abstr act and objective analysis, the weighing process envisi oned by the Code's provisions necessarily reflects the seasoning and experience of the particular sentenci ng judge. To permit post-conviction review of the adequacy of the sentencing judge's findings and conclusions would open the gates to an avalanche of grievances, often long after the sentence was impos ed. In light of the availability of relief by way of di rect appeal, we perceive no need to make post-conviction relief an open sesame for the wholesale review of sentences. [State v. Flores, 228 N.J. Super. 586, 595-96 (App. Div. 1988).]11 A- 3060

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Thus, "the adequacy of the sentencing court's findi ngs and the sufficiency of the weighing process employed should be addressed only by way of direct appeal." Id. at 595; see also State v. Acevedo, 205 N.J. 40, 45-47 (2011). Here, defendant unsuccessfully contested the sent encing court's findings of aggravating and mitigating factors on direct app eal

. The redundant present request for relief is both beyond the scope of Rule 3:21 -10(b)(5) relief and barred as previously raised. See Njango, 247 N.J. at 544. Although the motion court painstakingly reviewed again the substantive merits of the defendant's assertions, we see no appropriate claim compelling us to revisit our opinion affirming the application of the sentencing factors

. B.
Ne xt , defendant's claim that the trial court failed to advise him of his upper sentencing exposure at the final pretrial conferenc e similarly fails to implicate Rule 3:21 -10(b)(5) as it challenges pretrial procedure, not defendant's sentence. Whether or not the trial court expressly advised de fendant of the maximum sentencing exposure before defendant rejected the S tate's plea offer bears no resemblance to a question of sentencing illegality under Rule 3:21 -10(b)(5). The challenge should have been raised on direct appeal or certainly at the time of defendant's PCR petition when defendant asserted th is precise issue while12 A- 3060

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alleging ineffective assistance of his trial counse l. That defendant claims violation of his right to due process does not chan ge the calculus

. At its core, this claim amounts to an attempt at a second PCR petition and, therefore, is subject to the limitations establishe d in Rule 3:22 -4(b) and Rule
3:22 -12(a)(2). While an order to correct an illegal se ntence "may be entered at any time," R. 3:21 -10(b)(5), a second PCR petition must be filed with in one year and only in very limited circumstances not present here, s ee R. 3:22 -12(a)(2)(A) to (C). Defendant's claim is not based on Supreme Court-approved retroactive application of a new rule of constitutional law, R. 3:22 -12(a)(2)(A), the discovery of a factual predicate incapable of disco very earlier "through the exercise of reasonable diligence," R. 3:22 -12(a)(2)(B), or an allegation of ineffective assistance of counsel with respect to a prior PCR petition, R. 3:22

- 12(a)(2)(C). Time limits may be waived to prevent a fundam ental injustice, but only if their relaxation does not undermine their d ual key purposes: "to ensure that the passage of time does not prejudice the Stat e's retrial of a defendant" and "to respect the need for achieving finality." Stat e v. DiFrisco, 187 N.J. 156, 166 -67 (2006) (citing State v. Mitchell, 126 N.J. 565, 575-76 (1992)). We see no basis to consider this time-barred claim that wa s clearly known to the defendant and addressed in prior proceedings.13 A- 3060

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Although we are satisfied that defendant's claim is procedurally barred, for completeness we briefly comment on the merits. As noted, the record demonstrates that trial counsel advised defendant o f his maximum sentencing exposure before defendant rejected the State's plea offer. Consequently, no prejudice resulted from the trial court's alleged f ailure to specifically state on the record that if convicted, defendant's exposure was a life sentence

. We have carefully considered and reject each of def endant's arguments singularly, and therefore conclude no cumulative ef fect warrants relief. Affirmed.