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 D ivision, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. 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 hi s 1994 convictions, 1 defendant Jeffrey Pickett appeals from the December 16, 2022, Law Division order denying his motion to correct an illegal sent ence under Rule 3:21 -10(b)(5). We affirm. Following a jury trial, defendant was convicted ofthree counts of firstdegree attempted murder and related offenses stemmi ng from hi m 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 aggregat e 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 negotiate d guilty plea to a related certain persons offense charged in a separate indic tment.

3 As we discussed in our prior unpublished decision, "[p]rior to his 1994 convictions, defendant had a significant criminal h istory," including "a 19833 A- 1484

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imprisonment, with a thirty-five-year period of par ole ineligibility. The sentence encompassed consecutive terms for two of t he attempted murder convictions and one extended term. Defendant appealed his convictions and sentence, a rguing, among other thi ngs, that his sentence was excessive and illegal. We determined the imposition of "an extended term," "consecutive term s ," and "maximum ordinary
terms" w ere justified, and affirmed the convictions and sentence. Pickett I, slip op. at 5- 6. Our Supreme Court denied certification. State v. P ickett, 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 applica tions have challenged in some form or another the legality of defendant's sentenc e, and all applications have been denied by the trial court as procedurally barr ed, s ee R. 3:22 -5 , or

conviction for receiving stolen property"; "a 1984 conviction for possession of a controlled dangerous substance"; and "a 1987 conv iction for possession of marijuana with intent to distribute, . . . first-de gree robbery, . . . fourth-degree aggravated assault, . . . and fourth-degree resisti ng arrest." Pickett IV , slip op. at 3- 4.4 A- 1484

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substantively without merit. 4 Other than the 2004 PCR petition that was not appealed, in unpublished decisions, we have univers ally affirmed the trial courts' rulings and upheld defendant's sentence. See Picke tt 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. Picket t (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 sentencin g court erroneously deemed him extended-term eligible by improperly tre ating him as a repeat offender under the Graves Act." Id. at 8. Notwithstanding Rule 3:22 -5 preclud ing defendant "from re -raising arguments that ha ve been resolved previously against him," ibid., we concluded that " defendant's qualifying convictions pre-dating his 1994 convictions . . . c learly qualified [defendant] as an extended-term eligible persistent offender," id. at 9. Therefore, "his sentence was rendered in accordance with applicable law" bec ause "the court had

4 Defendant also unsuccessfully moved for reconsidera tion of the denial of the 2019 motion to correct an illegal sentence.5 A- 1484

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independent grounds to sentence defendant to an ext ended term as a persistent offender." I bid. The subject of this appeal is defendant's third mot ion 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 con secutive. Defendant also asserted that the sentenc ing 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 or der and accompanying letter opinion den ying the motion. In the opinion, the judge recounted the facts and a pplicable law, positing that "[defendant's] arguments amount[ed] to a continui ng 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 term s of each sentence and the propriety of them being consecutive were decided on direct appeal." The judge also explained that because "Torres did n ot express a new rule of law regarding the imposition of consecutive sent ences," but "merely emphasized what has always been required under the Code and [State v.6 A- 1484

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Yarbough, 100 N.J. 627 (1985)]," there was no retro activ ity

. See State v. Fe al , 194 N.J. 293, 308 (2008) (explaining that "[a] case anno unces a new rule of law for retroactivity purposes" if "'it breaks new grou nd 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 c onviction became final.'" (omission and second alteration in original) (empha sis omitted) (quoting State v. Lark, 117 N.J. 331, 339 (1989))); State v. Burst ein, 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 FURTHE R PROCEEDINGS. Under Rule 3:21 -10(b)(5), "[a] motion may be filed and an order ma y 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

-7 A- 1484

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10(b)(5))). Whether a defendant's sentence is ille gal 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 authoriz ed by law. State v. Schubert, 212 N.J. 295, 308 (2012). Those two categories of illegal sentences have bee n "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' in cludes 'a disposition [not] authorized by the Code.'" Drake, 444 N.J. Super. a t 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] afo ul of the Yarbough guidelines" are not "cognizable in post-conviction relief proceedings because it does not relate to the legality of the sentences im posed." 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 char acterized as relating to the8 A- 1484

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'excessiveness' of the sentences, rather than their legality." Flores, 228 N.J. Super. at 596. Defendant's sentence does not fall into either cate gory of illegal sentences to warrant correction under Rule 3:21 -10(b)(5). Defendant claims that the sentencing judge failed to provide "an explicit exp lanation for the overall fairness of [the] sentence," Torres, 246 N.J. at 27 1, and "fail[ed] to give a statement for the consecutive sentence that was imp osed." Even if true, such omissions do not render defendant's sentence illega l. 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 s entencing 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.; s ee also Acevedo, 205 N.J. at 47 ("[A]s defendant's contentions regarding conse cutive sentences or the absence of reasons for imposition of the consecutiv e sentences do not relate to the issue of sentence 'legality' and are not cogniz able on PCR, or under the present Rule 3:21 -10(b)(5), the Appellate Division erred in modifyin g the sentence.").9 A- 1484

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Defendant argues that the motion judge's "decision to procedurally bar his motion is misplaced, as the procedural bars of [Rul e] 3:22 only appl[y] to PCR petitions, and not sentencing motions filed pursuan t 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 other wise not in accordance with the sentence authorized by law," but only "if raise d 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 cla im alleging the imposition of sentence in excess of or otherwise not in accord ance 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 procee dings resulting in the conviction or in any post-conviction proceeding bro ught pursuant to this rule or prior to the adoption thereof, or in any appeal tak en 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 sa id, although a PCR petition10 A- 1484

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may be procedurally barred under Rule 3:22 -5, defendant is correct that Rule
3:22 -5 does not explicitly address a motion brought und er Rule 3:21 -10(b)(5). Nevertheless, defendant 's motion to correct an illegal sentence fails because his sentence is not illegal. Therefore, de fendant's motion was properly denied because he failed to demonstrate the sentenc e 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.