STATE OF NEW JERSEY VS. WILLIAM STOVALL (91-12-1439, MERCER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0610-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM STOVALL,
Defendant-Appellant.
_________________________
Submitted March 26, 2019 – Decided September 4, 2019
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 91-12-1439.
William Stovall, appellant pro se.
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Lauren Martinez, Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant William Stovall appeals from the August 29, 2017 order that
denied his motion to correct an illegal sentence. In denying the motion, the trial
court stated the motion was moot because defendant "already exhausted [his]
appeal remedies and [his] post-conviction relief remedies." The trial court then
addressed each of defendant's arguments. We affirm the order on substantive
grounds.
I
Defendant was indicted in 1991 for attempting to procure weapons and
explosives in order to escape from prison. He was convicted by a jury in 1994
of all counts against him in the indictment. Relevant here, defendant was
convicted under count two of second-degree attempt to escape, N.J.S.A. 2C:5-1
and 2C:29-5(a), and under count four of second-degree attempt to procure
escape implements (firearms, ammunition, and explosives), N.J.S.A. 2C:5-1 and
2C:29-6(a)(2).1 We have set forth in detail the factual background of the case
1
His other convictions included: second-degree conspiracy to escape, N.J.S.A.
2C:5-2 and N.J.S.A. 2C:29-5(a) (count one); second-degree attempt to possess
weapons (firearms) for unlawful purposes, N.J.S.A. 2C:5-1 and 2C:39-4(a)
(count six); second-degree attempt to possess weapons (destructive devices) for
unlawful purposes, N.J.S.A. 2C:5-1 and 2C:39-4(c) (count seven); third-degree
attempt to unlawfully possess weapons (handguns), N.J.S.A. 2C:5-1 and 2C:39-
5(b) (count eight); third-degree attempt to unlawfully possess a weapon (assault
firearm), N.J.S.A. 2C:5-1 and 2C:39-5(f) (count nine); third-degree attempt to
possess prohibited devices (explosives), N.J.S.A. 2C:5-1 and 2C:39-3(a) (count
ten); fourth-degree attempt to possess a prohibited device (silencer), N.J.S.A.
2C:5-1 and 2C:39-3(c) (count eleven); and fourth-degree possession of
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in our unreported opinion that affirmed defendant's convictions on direct appeal,
and do not have need to repeat it here. See State v. Stovall (Stovall I), No. A-
0850-94 (App. Div. Dec. 2, 1996).2
In 1994, defendant was sentenced. Count one was merged into count two.
He was sentenced to an extended term of twenty years of imprisonment on count
two with a ten-year period of parole ineligibility. This was to be served
consecutively to the sentence he was already serving.3 Defendant was sentenced
to a ten-year term of imprisonment on count four with a ten-year period of parole
ineligibility. This was to be served consecutive to count two.4 Thus, defendant's
aggregate term was thirty years in prison with a twenty-year period of parole
ineligibility.
prohibited devices (body-armor breaching or penetrating ammunition), N.J.S.A.
2C:39-3(f)(2) (count twelve).
2
Defendant's petition for certification was denied. State v. Stovall, 149 N.J. 35
(1998). In 2016, we affirmed an order that denied defendant's petition for post-
conviction relief in an unreported opinion, State v. Stovall (Stovall II), No. A-
1162-13 (App. Div. Feb. 17, 2016). The Supreme Court denied his petition for
certification. State v. Stovall, 227 N.J. 213 (2016).
3
He was serving a seventy-five year term with a thirty-six year period of parole
ineligibility.
4
His sentences on the other counts ranged from eighteen months on counts
eleven and twelve to a ten-year term on count seven, all of which were to be
served concurrent to one another and concurrent to counts two and four.
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3
The 1994 judgment of conviction incorrectly listed defendant's aggregate
term as twenty years. In Stovall I, we addressed defendant's arguments that his
sentence was excessive and illegal. We concluded the trial court was correct to
merge count one (conspiracy) into count two. Stovall I, slip op. at 17. However,
we vacated the sentence on count four because defendant was sentenced to ten
years under N.J.S.A. 2C:43-6(g), which concededly did not apply to a violation
of N.J.S.A. 2C:29-6(a)(2).5 Ibid. The sentence was vacated and remanded for
resentencing. Id. at 20.
In 1997, defendant was resentenced to a twenty-year term on count two
with ten years of parole ineligibility to be served consecutively to the sentence
he then was serving. On count four, he was sentenced to a ten-year term to run
consecutively to count two. 6 However, the judgment of conviction provided the
aggregate custodial term was twenty years rather than thirty years. In 1998, an
assistant prosecutor wrote to the trial judge advising the judgment of conviction
should have said the total custodial sentence was thirty years, rather than twenty,
5
We also remanded the sentence on count six for reconsideration in light of
State v. Latimore, 197 N.J. Super. 197, 221 (App. Div. 1984).
6
He was resentenced on count six to a ten-year term with a five-year period of
parole ineligibility.
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with a fifteen-year period of parole ineligibility. Thereafter, the judgment of
conviction was amended to correctly reflect a total custodial term of thirty years.
In 2016, defendant filed a motion to correct an illegal sentence and
supported it with multiple briefs. The motion was denied on August 29, 2017.
The trial court rejected defendant's argument that count four should have been
merged into count two because it reasoned each of the convictions "require[d]
elements that the other [did] not." The court noted, "an acquittal of conviction
under one statute [did] not preclude punishment under another statute from the
same act or transaction, provided that all the elements of the second offense
[were] still met." The court observed, "an attempt to escape and an attempt to
possess a weapon in an escape are clearly separate offenses and require different
facts." It rejected defendant's argument that the same evidence could not be
used to convict under separate counts. Because defendant was convicted under
separate counts, the court found the thirty-year aggregate sentence was "the
correct and appropriate sentence." The correction of the judgment to reflect an
aggregate term was a clerical correction. This was not an increase in his
sentence. The trial court disagreed with defendant that the jury's verdict sheet
was ambiguous because the "second-degree charge [he was] sentenced to has
not been challenged or changed throughout [his] long procedural history." The
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trial court held that because defendant was convicted of an attempt to procure
weapons, the physical possession of them was not a material element of that
crime.
On appeal, defendant raises the following issues:
POINT I
DEFENDANT'S MOTION WAS TIMELY.
POINT II
MERGER OF COUNT FOUR INTO COUNT TWO
MUST BE HAD SINCE THE COURT FAILED TO
INSTRUCT TO NOT RELY ON THE EVIDENCE
PRESENTED TO PROVE COUNT TWO AS PROOF
OF COUNT FOUR.
POINT III
IT WAS ILLEGAL FOR THE COURT TO
SENTENCE ON THE SECOND DEGREE CHARGES
WHEN THE JURY DISREGARDED THE COURT'S
INSTRUCTION TO NOT FIND DEFENDANT
GUILTY OF BOTH SECOND AND THIRD DEGREE
OFFENSES OF THE SAME CRIME.
a. Ambiguity In Verdicts
b. The Rule of Lenity
POINT IV
THE SECOND DEGREE SENTENCE IMPOSED ON
COUNT FOUR IS ILLEGAL PURSUANT TO THE
FOURTEENTH AMENDMENT BECAUSE
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DEFENDANT NEVER POSSESSED THE
IMPLEMENTS OF ESCAPE INSIDE THE PRISON.
POINT V
AN INCREASE IN SENTENCE AFTER ENTRY OF
AN AMENDED JUDGMENT OF CONVICTION IS
UNCONSTITUTIONAL PURSUANT TO THE
DOUBLE JEOPARDY PROVISIONS OF THE
FEDERAL AND STATE CONVICTIONS [SIC], AND
MINIMAL DUE PROCESS.
a. Procedural Due Process, Double
Jeopardy Concerns Generally
b. Substantive Due Process Implications
POINT VI
DEFENDANT WAS CONSTITUTIONALLY
ENTITLED TO BE PRESENT FOR ANY
RESENTENCING OR PROVIDE INPUT. THUS, HE
REMAINS ENTITLED TO A RESENTENCING.
a. State Provisions
b. Applicable Federal Law
II
Whether a sentence is illegal is an issue of law that we review de novo.
See State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2015). "An illegal
sentence that has not been completely served may be corrected at any time
without impinging upon double-jeopardy principles." State v. Austin, 335 N.J.
A-0610-17T4
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Super. 486, 494 (App. Div. 2000). "Our Supreme Court has defined 'an illegal
sentence [as] one that "exceeds the maximum penalty provided in the Code for
a particular offense" or a sentence "not imposed in accordance with law."'" State
v. Hyland, 452 N.J. Super. 372, 381 (App. Div. 2017) (quoting State v. Acevedo,
205 N.J. 40, 45 (2011)), aff'd as modified, 238 N.J. 135 (2019). "A sentence
'not imposed in accordance with law' includes a 'disposition [not] authorized by
the Code.'" Ibid. (quoting State v. Murray, 162 N.J. 240, 247 (2000)). Under
Rule 3:21-10(b), "an order may be entered at any time . . . correcting a sentence
not authorized by law including the Code of Criminal Justice."
Defendant has not argued that his sentences exceeded the maximum
custodial terms as extended or that law did not authorize them. His arguments
are that the sentences are violative of the double jeopardy or due process clauses.
We agree with the State that defendant could have raised any of these
issues in his prior appeals or in his PCR petition. Generally, we "will not
consider issues, even constitutional ones, which were not raised below." State
v. Galicia, 210 N.J. 364, 383 (2012) (citing Deerfield Estates, Inc. v. E.
Brunswick, 60 N.J. 115, 120 (1972)). Defendant has not raised any issues that
warrant further review of his sentence.
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Defendant contends the trial court should have merged count four into
count two for sentencing, but the convictions were for separate offenses,
requiring proof of separate elements. Defendant was convicted under count two
of second-degree attempt to escape, contrary to N.J.S.A. 2C:5-1 and 2C:29-5(a).
As the trial court instructed, a conviction required:
proof beyond a reasonable doubt that the defendant was
confined in an institution on a charge or a conviction,
that the defendant attempted to engage in conduct[,]
which would result in his own removal from custody,
that the defendant had no legal right to do so, and that
the defendant acted knowingly.
Although ordinarily a crime of the third degree, it is elevated to second degree
where "there is proof beyond a reasonable doubt that the actor attempted to
employ force, threat, a deadly weapon or other dangerous instrumentality to
effect the escape."
Defendant was convicted under count four of second-degree attempt to
procure escape implements (firearms, ammunition, and explosives) contrary to
N.J.S.A. 2C:5-1 and 2C:29-6(a)(2). Under this count, the State had to prove
beyond a reasonable doubt that defendant "was an inmate of an institution, that
the [d]efendant attempted to procure the weapons mentioned . . . that [the]
weapons might be useful for an escape, and that the [d]efendant acted both
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knowingly and unlawfully." When the attempt was to obtain "weapons" as
defined, then the offense was a second-degree offense rather than a third degree.
Our Supreme Court stated that "[t]he Double Jeopardy Clause contains
three protections for defendants. It protects against (1) 'a second prosecution
for the same offense after acquittal,' (2) 'a second prosecution for the same
offense after conviction,' and (3) 'multiple punishments for the same offense.' "
State v. Miles, 229 N.J. 83, 92 (2017) (quoting North Carolina v. Pearce, 395
U.S. 711, 717 (1969)). The Court noted that what was common to the three
protections "is the concept of 'same offense.'" Ibid. "Accordingly, a prime
concern when reviewing a double-jeopardy claim is 'whether the second
prosecution is for the same offense involved in the first.'" Id. at 92-93 (quoting
State v. Yoskowitz, 116 N.J. 679, 689 (1989)). In Miles, the Court adopted the
"same-elements test as the sole double-jeopardy analysis" and instructed that it
would not "recognize the same-evidence test as a measure of whether two
offenses constitute the same offense." Id. at 96.
The Double Jeopardy Clause was not violated here. The elements of the
offenses under counts two and four are plainly distinct; they do not involve the
same elements. One is an attempt by defendant to remove himself from
detention; the other is an attempt to procure weapons while in custody.
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Applying Miles, there is no Double Jeopardy Clause violation and, of course, no
necessity to merge the counts for purposes of sentencing. Merger was not
required by N.J.S.A. 2C:1-8.
Defendant's argument that the same evidence was used to convict him
under counts two and four is incorrect in light of the separate elements for these
counts, and is out of step with Miles because that analysis focuses on whether
the elements of the crimes are the same. We reject defendant's argument that
the attempt to procure weapons—that elevated the crimes to second degree—
somehow required merger. That fact did not take what otherwise were separate
crimes (attempt to escape and attempt to procure weapons) and meld them into
one. There is no evidence the legislature intended that result nor does it make
any logical sense.
Similarly lacking is defendant's argument that a conviction under count
four required the actual possession of a weapon. That is not an element of the
offense, particularly when what is charged is an attempt. When an attempt is
involved, the focus is on the defendant's intent. State v. Robinson, 136 N.J. 476,
483 (1994). "[O]ne of the main purposes of the Code's criminal attempt statute,
N.J.S.A. 2C:5-1, is to ensure that a person who acts with the purpose of
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committing a crime does not escape punishment merely because the crime was
not completed." Ibid. Actual possession is not required.
Defendant argues that the trial court increased his sentence when it
corrected a clerical error on the judgment of conviction. He does not seem to
dispute that the trial judge sentenced him to a twenty-year term on count two
and a ten-year term on count four to run consecutively. Despite this, the
judgments of conviction said that the total term was twenty years. This error
was corrected in 1998. By simple math, the aggregate term was thirty years.
This is what the judgment of conviction was corrected to say. There was no
increase in his sentence. The trial court had the ability to correct a clerical-type
error "on its own initiative or on the motion of any party . . . ." R. 1:13-1; see
State v. Matlack, 49 N.J. 491, 501-502 (1967) (providing that "[n]o fundamental
right of defendant will be violated if an inadvertent clerical-type error is
corrected, and he receives the sentence which the trial judge intended him to
receive"). "It is firmly established that the sentencing transcript is 'the true
source of the sentence.'" State v. Walker, 322 N.J. Super. 535, 556 (App. Div.
1999) (quoting State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956)).
There was no requirement in the Rule that defendant be present when the clerical
correction was made.
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Defendant contends the rule of lenity should apply to the verdict sheet
because the jury checked both boxes under counts two and four and that this
should be used to lower his convictions to third-degree offenses.
The rule of lenity is an important principle of statutory
construction; if a statutory ambiguity cannot be
resolved by analysis of the relevant text and the use of
extrinsic aids, the rule requires that the ambiguity be
resolved in favor of the defendant. The rule of lenity
derives from the principle that "[n]o one shall be
punished for a crime unless both that crime and its
punishment are clearly set forth in positive law."
[State v. Regis, 208 N.J. 439, 451-52 (2011) (citations
omitted) (quoting In re DeMarco, 83 N.J. 25, 36
(1980)).]
Our Supreme Court has made clear that the rule is limited in its application.
"[T]he rule of lenity is applied only if a statute is ambiguous, and that ambiguity
is not resolved by a review of 'all sources of legislative intent.'" Id. at 452
(quoting State v. D.A., 191 N.J. 158, 165 (2007)).
The rule does not apply because the ambiguity of a statute is not in issue
in this case. In addition, defendant did not previously raise this issue although
he had the opportunity to do so in his direct appeal. Although we are not
required to consider the issue, see Galicia, 210 N.J. at 383, we agree with the
trial judge that the checked boxes indicated the jury agreed that the State proved
second-degree offenses. There was no ambiguity reflected in the transcript. The
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jury foreperson announced the jury's verdict on both counts as being in the
second degree and the jury thereafter was polled, indicating agreement.
None of defendant's issues raised any due process concerns. We conclude
that defendant's further arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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