SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

- 3876

- 18T4 STATE OF NEW JERSEY, Plaintiff

- Appellant,

v . ROY DOVE, a/k/a MICHAEL FLEMING, MIKE FLEMMING, and KENT HUNT, Defendant

- Respondent.

Submitted August 28, 2019

– Decided Before Judges Alvarez and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97

- 05

- 2358. Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for appellant ( Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent ( Diane E. Carl, First Assistant Deputy Public Defender, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

September 4, 20192 A

- 3876

- 18T4

PER CURIAM By way of interlocutory appeal, t he State challenges a Law Division order
gr anting defendant Roy Dove's motion to correct an illegal sentence. W e

reverse. Defendant was convicted by a jury of the following: first

- degree aggravated manslaughter, N.J.S.A. 2C:11

- 4; first

- degree felony murder,
N.J.S.A. 2C:11

- 3(a)(3); first

- degree armed robbery, N.J.S.A. 2C:15

- 1; fourth

degree unlawful possession of a knife, N.J.S.A. 2C:39

- 5(d); and third

- degree possession of a knife for an unlawful purpose , N.J.S.A. 2C:39

- 4(d). On May 29, 1998, Dove was sentenced to an aggregate term of life in pr ison without parole, and a separate eighteen months for the unlawful possession of a knife.
A lthough the convictions and sentence were affirmed, the matter was remanded for the entry of an amended judgment merging all the offenses

. 1 State v. Dove , No. A

- 6522

- 98 (App. Div. Oct. 2, 2000). The Supreme Court denied certification. State v. Dove , 1 67 N.J. 88 (2001). Defendant's two post

- conviction relief (PCR) applications , both based on the grounds of ineffective assistance of counsel , were denied by way o f

1 It is unclear whether a subsequent amended judgment was ever entered. None was included in either party's appendix. The only judgment of conviction provided is dated May 29, 1998.3 A

- 3876

- 18T4

unpublished opinions. State v. Dove , No. A

- 0567

- 04 (App. Div. Jan. 30, 2006) ; State v. Dove , No. A

- 4030

- 08 (App. Div. May 4, 2010)

. Defendant only petitioned for certification as to the first PCR, which was denied. State v. Dove , 186 N.J. 604 (2006). Defendant's petition for federal habeas corpus relief was also denied. Dove v. Ricci , No. 06

- 04940

- FSH (D.N.J. Aug. 23, 2007). When he sentenc ed defendant in 1998, the judge said :

[U]nfortunately, as I have indicated

. . . a jury has found you guilt y of all of these charges. The State has made a motion for an extended term as a repeat offender, and pursuant to the statute they've confirmed their right to do so, and I must agree by virtue of the evidence submitted to me that they are correct, and I s hall sentence you accordingly. The jury, despite your disagreement, required a total time of less than four and one

- half hours to determine your guilt on these very serious matters. I have considered your presentence report very carefully. You're 36 years of age. You've been convicted as the State has indicated, of two serious crimes before. There's the necessity to deter you and others.
Defendant now allege s by way of motion that the judge's failure to articulate additional reasons made the sente nce illegal and requir es correction. Although appearing to agree with the State that even if defendant wa s

re sentence d, life without parole was mandated pursuant to N.J.S.A. 2C:43

- 7.1 ,4 A

- 3876

- 18T4

the Law Division judge nonetheless granted the application . The only reason she gave for the decision is that it would give defendant an opportunity to pr off e r the rehabilitative efforts he made since his incarcer ation some twenty years prior. Defendant does not question his eligibility for mandatory life without parole pu rsuant to N.J.S.A. 2C:43

- 7.1(a). He had been convicted of two first

degree armed robber ies , N.J.S.A. 2C:15

- 1 , when at least twenty

- one years old before his 1998 sentence. Thus, defendant was then also eligible for sentencing as a persistent offender purs uant to N.J.S.A. 2C:44

- 3(a). The controlling case is State v. Acevedo , 205 N.J. 40 (2011). In th a t per curiam decision, the C ourt posed the question: "whether the imposition of consecutive sentences without a statement of reasons gives rise to [a basis for] relief on a petition for [ PCR ] ." Id. at 42. The Court held that the sentence was not "illegal , " within the scope of t he rules related to PCR, and was "therefore not subject to modification on PCR." Ibid. The Court reviewed years of relev ant precedent, reaffirming the well

- established principle that the failure to state reasons for an otherwise legal sentence is not grounds for post

- conviction relief. Id. at 45

- 47.5 A

- 3876

- 18T4

Just as in Acevedo , this defendant contends that the sentence is illega l because of the judge's failure to enumerate the relevant aggravating and mitigating factors , or other wise expand on his reasons. That does not suffice to make the sentence illegal. Applying Acevedo 's straightforward mandate, we must respectfully disagr ee with the Law Division judge. Reversed.