SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1484-22 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

JEFFREY PICKETT, a/k/a 

ABDULLAH AB, TONY MCCOY, 

TERRY MCCOY, TERY MORGAN, 

TERRENCE MORGAN, JERAD 

PICKETT, JEFF PICKETT, and 

RODNEY PICKETT, 

 Defendant-Appellant. 

_______________________________ 

Submitted February 27, 2024 – Decided March 20, 2024 

Before Judges Gooden Brown and Natali. 

On appeal from the Superior Court of New Jersey, 

Law Division, Essex County, Indictment Nos. 

93-05-1733 and 93-05-1734.

Jeffrey Pickett, appellant pro se. 

Theodore N. Stephens, II, Acting Essex County 

Prosecutor, attorney for respondent (Matthew E. 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-1484-22

Hanley, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM 

 Now his fifth time before this court concerning his 1994 convictions,1

defendant Jeffrey Pickett appeals from the December 16, 2022, Law Division 

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

We affirm. 

 Following a jury trial, defendant was convicted of three counts of firstdegree attempted murder and related offenses stemming from him opening fire 

on three Newark police officers attempting to detain him.2 After determining 

that defendant was extended-term eligible either as a persistent offender under 

N.J.S.A. 2C:44-3(a), or as a second Graves Act offender under N.J.S.A. 2C:44-

3(d),3 the trial court sentenced defendant to an aggregate extended term of life 

1

 See State v. Pickett (Pickett I), No. A-4277-93 (App. Div. July 19, 1996), 

certif. denied, 148 N.J. 459 (1997); State v. Pickett (Pickett II), No. A-4552-06 

(App. Div. June 30, 2008), certif. denied, 196 N.J. 465 (2008); State v. Pickett 

(Pickett III), No. A-2335-10 (App. Div. Jan. 13, 2014), certif. denied, 218 N.J. 

531 (2014); State v. Pickett (Pickett IV), No. A-1329-21 (App. Div. Dec. 15, 

2022), certif. denied, 255 N.J. 377 (2023). 

2

 After the trial, defendant also entered a negotiated guilty plea to a related 

certain persons offense charged in a separate indictment. 

 

3

 As we discussed in our prior unpublished decision, "[p]rior to his 1994 

convictions, defendant had a significant criminal history," including "a 1983 
3 A-1484-22

imprisonment, with a thirty-five-year period of parole ineligibility. The 

sentence encompassed consecutive terms for two of the attempted murder 

convictions and one extended term. 

 Defendant appealed his convictions and sentence, arguing, among other 

things, that his sentence was excessive and illegal. We determined the 

imposition of "an extended term," "consecutive terms," and "maximum ordinary 

terms" were justified, and affirmed the convictions and sentence. Pickett I, slip 

op. at 5-6. Our Supreme Court denied certification. State v. Pickett, 148 N.J. 

459 (1997). 

 Since then, defendant has filed two petitions for post-conviction relief 

(PCR), one in 2004 and one in 2007, and two motions to correct an illegal 

sentence, one in 2005 and one in 2019. All applications have challenged in some 

form or another the legality of defendant's sentence, and all applications have 

been denied by the trial court as procedurally barred, see R. 3:22-5, or

conviction for receiving stolen property"; "a 1984 conviction for possession of 

a controlled dangerous substance"; and "a 1987 conviction for possession of 

marijuana with intent to distribute, . . . first-degree robbery, . . . fourth-degree 

aggravated assault, . . . and fourth-degree resisting arrest." Pickett IV, slip op. 

at 3-4.
4 A-1484-22

substantively without merit.4 Other than the 2004 PCR petition that was not 

appealed, in unpublished decisions, we have universally affirmed the trial courts' 

rulings and upheld defendant's sentence. See Pickett II, slip op. at 5; Pickett III, 

slip op. at 7; Picket IV, slip op. at 10. And our Supreme Court has denied 

certification. State v. Pickett (Pickett II), 196 N.J. 465 (2008); State v. Pickett 

(Pickett III), 218 N.J. 531 (2014); State v. Pickett (Pickett IV), 255 N.J. 377 

(2023). 

 In Pickett IV, we noted that "[d]espite defendant's repackaging of the 

issue . . . , he clearly continues to maintain that the sentencing court erroneously 

deemed him extended-term eligible by improperly treating him as a repeat 

offender under the Graves Act." Id. at 8. Notwithstanding Rule 3:22-5 

precluding defendant "from re-raising arguments that have been resolved 

previously against him," ibid., we concluded that "defendant's qualifying 

convictions pre-dating his 1994 convictions . . . clearly qualified [defendant] as 

an extended-term eligible persistent offender," id. at 9. Therefore, "his sentence 

was rendered in accordance with applicable law" because "the court had 

4

 Defendant also unsuccessfully moved for reconsideration of the denial of the 

2019 motion to correct an illegal sentence. 
5 A-1484-22

independent grounds to sentence defendant to an extended term as a persistent 

offender." Ibid.

The subject of this appeal is defendant's third motion to correct an illegal 

sentence, filed on September 22, 2022. In the motion, defendant argued that his 

sentence was excessive and should not have been consecutive. Defendant also 

asserted that the sentencing court failed to provide a statement regarding the 

overall fairness of the sentence in accordance with State v. Torres, 246 N.J. 246, 

268 (2021). On December 16, 2022, the motion judge issued an order and 

accompanying letter opinion denying the motion. 

In the opinion, the judge recounted the facts and applicable law, positing

that "[defendant's] arguments amount[ed] to a continuing disagreement with the 

Appellate Division ruling on direct appeal." Citing Rule 3:22-5, the judge 

determined that defendant's arguments were "barred" as "they ha[d] already been 

conclusively determined adversely to [defendant]," and the judge "ha[d] no 

authority to address the sentence, as both the terms of each sentence and the 

propriety of them being consecutive were decided on direct appeal." 

The judge also explained that because "Torres did not express a new rule 

of law regarding the imposition of consecutive sentences," but "merely 

emphasized what has always been required under the Code and [State v. 
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Yarbough, 100 N.J. 627 (1985)]," there was no retroactivity. See State v. Feal, 

194 N.J. 293, 308 (2008) (explaining that "[a] case announces a new rule of law 

for retroactivity purposes" if "'it breaks new ground or imposes a new obligation 

on the States or the Federal Government . . . [or] if the result was not dictated 

by precedent existing at the time the defendant's conviction became final.'" 

(omission and second alteration in original) (emphasis omitted) (quoting State 

v. Lark, 117 N.J. 331, 339 (1989))); State v. Burstein, 85 N.J. 394, 403 (1981) 

(stating "retroactivity can arise only where there has been a departure from 

existing law"). Therefore, according to the judge, defendant's sentence was "not 

illegal" and "no resentencing [was] required." This appeal followed. 

On appeal, defendant raises a single point for our consideration: 

THE LOWER COURT ERRONEOUSLY DENIED 

THE SENTENCING MOTION CITING THE 

PROCEDURAL BAR OF [RULE] 3:22-5. THIS BAR 

DOES NOT APPLY TO [RULE 3:21-10(b)(5)]. 

THUS, THE ORDER SHOULD BE VACATED AND 

THE MATTER REMANDED FOR FURTHER 

PROCEEDINGS. 

 Under Rule 3:21-10(b)(5), "[a] motion may be filed and an order may be 

entered at any time . . . correcting a sentence not authorized by law including 

the Code of Criminal Justice." See State v. Zuber, 227 N.J. 422, 437 (2017) ("A

defendant may challenge an illegal sentence at any time." (citing R. 3:21-
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10(b)(5))). Whether a defendant's sentence is illegal is an issue of law subject 

to de novo review. State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2016). 

There 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. Schubert, 212 N.J. 295, 308 (2012). 

Those two categories of illegal sentences have been 

"defined narrowly." State v. Murray, 162 N.J. 240, 246 

(2000). 

[State v. Hyland, 238 N.J. 135, 145 (2019).] 

"A sentence 'not imposed in accordance with law' includes 'a disposition [not] 

authorized by the Code.'" Drake, 444 N.J. Super. at 271 (alteration in original) 

(quoting Murray, 162 N.J. at 247). 

 "[M]ere 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 post-conviction relief and can only 

be raised on direct appeal from the conviction." State v. Clark, 65 N.J. 426, 437 

(1974). Even consecutive sentences that "[run] afoul of the Yarbough 

guidelines" are not "cognizable in post-conviction relief proceedings because it 

does not relate to the legality of the sentences imposed." State v. Acevedo, 205 

N.J. 40, 46 (2011) (quoting State v. Flores, 228 N.J. Super. 586, 596 (App. Div. 

1988)). "[S]uch claims have historically been characterized as relating to the 
8 A-1484-22

'excessiveness' of the sentences, rather than their legality." Flores, 228 N.J. 

Super. at 596. 

Defendant's sentence does not fall into either category of illegal sentences 

to warrant correction under Rule 3:21-10(b)(5). Defendant claims that the 

sentencing judge failed to provide "an explicit explanation for the overall 

fairness of [the] sentence," Torres, 246 N.J. at 271, and "fail[ed] to give a 

statement for the consecutive sentence that was imposed." Even if true, such 

omissions do not render defendant's sentence illegal. Hyland, 238 N.J. at 146. 

As our Supreme Court has explained, "even 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." Ibid.; see also Acevedo, 205 

N.J. at 47 ("[A]s defendant's contentions regarding consecutive sentences or the 

absence of reasons for imposition of the consecutive sentences do not relate to 

the issue of sentence 'legality' and are not cognizable on PCR, or under the 

present Rule 3:21-10(b)(5), the Appellate Division erred in modifying the 

sentence."). 
9 A-1484-22

Defendant argues that the motion judge's "decision to procedurally bar his 

motion is misplaced, as the procedural bars of [Rule] 3:22 only appl[y] to PCR 

petitions, and not sentencing motions filed pursuant to [Rule] 3:21-10(b)(5)." 

Under Rule 3:22-2(c), a "petition for [PCR] is cognizable if based upon" 

the "[i]mposition of sentence in excess of or otherwise not in accordance with 

the sentence authorized by law," but only "if raised together with other grounds 

cognizable" under Rule 3:22-2. Although Rule 3:22-2(c) is similar to Rule 3:21-

10(b)(5), they are separate and distinct. Indeed, when not "raised together with 

other grounds cognizable under" Rule 3:22-2, "a claim alleging the imposition 

of sentence in excess of or otherwise not in accordance with the sentence 

authorized by law shall be filed pursuant to [Rule] 3:21-10(b)(5)." R. 3:22-2(c). 

Under Rule 3:22-5, "[a] prior adjudication upon the merits of any ground 

for relief is conclusive whether made in the proceedings resulting in the 

conviction or in any post-conviction proceeding brought pursuant to this rule or 

prior to the adoption thereof, or in any appeal taken from such proceedings." As 

such, "[PCR] is not a substitute for direct appeal; nor is it an opportunity to 

relitigate a case on the merits." State v. Szemple, 247 N.J. 82, 97 (2021) (citing 

State v. Jones, 219 N.J. 298, 310 (2014)). That said, although a PCR petition 
10 A-1484-22

may be procedurally barred under Rule 3:22-5, defendant is correct that Rule 

3:22-5 does not explicitly address a motion brought under Rule 3:21-10(b)(5). 

Nevertheless, defendant's motion to correct an illegal sentence fails 

because his sentence is not illegal. Therefore, defendant's motion was properly 

denied because he failed to demonstrate the sentence either exceeded the 

penalties authorized for the offenses for which he was convicted or was not 

otherwise authorized by law. See Hyland, 238 N.J. at 145. 

Affirmed.