STATE OF NEW JERSEY VS. STEVEN B. MCNEIL (02-06-0929, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-4170-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN B. MCNEIL,
Defendant-Appellant.
________________________
Submitted October 30, 2019 - Decided November 18, 2019
Before Judges Koblitz and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 02-06-
0929.
Steven B. McNeil, appellant pro se.
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Jennifer Bentzel Paszkiewicz,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Steven B. McNeil appeals from the March 9, 2018 order
denying his post-conviction petition (PCR) to correct an illegal sentence. The
sentence was imposed more than thirteen years before he filed his motion. We
affirmed his conviction, State v. McNeil, No. A-3346-05 (App. Div. Dec. 13,
2007), and our Supreme Court denied his petition for certification, State v.
McNeil, 195 N.J. 422 (2008). Defendant's arguments are without merit and, after
de novo review, we affirm substantially for the reasons expressed by the court
in its March 9 letter opinion.
Following a jury trial, defendant was found guilty of both third-degree
aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a), and
second-degree eluding, N.J.S.A. 2C:29-2(b). In September 2005, he was
sentenced to an aggregate term of ten years in prison with a five-year period of
parole ineligibility, to be served consecutively to the sentences defendant was
then serving.
On direct appeal, we determined that "[t]he sentence imposed by the trial
judge properly took into account the relevant aggravating and mitigating factors
under N.J.S.A. 2C:44-1 and was well within the discretion of the sentencing judge."
McNeil, slip op. at 10.
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The trial court denied defendant's motion to correct an illegal sentence on the
basis that it was procedurally barred under Rule 3:22-5. It explained that, because
we determined on direct appeal that defendant's consecutive sentence was not
excessive and not in violation of State v. Yarbough, 100 N.J. 627 (1985), and
because our Supreme Court denied certification, McNeil, 195 N.J. at 422, our
decision to affirm the conviction and sentence is dispositive.
Defendant raises the following issue on appeal:
POINT I: THE TRIAL COURT ERRED BY
CONSIDERING APPELLANT'S MOTION TO
CORRECT HIS ILLEGAL SENTENCE UNDER THE
PROCEDURAL BAR RULE.
We apply a de novo standard of review and "give no deference to the legal
conclusions of the PCR court." State v. Harris, 181 N.J. 391, 415 (2004).
Defendant argues that the trial court erred as a matter of law by viewing his
motion to correct an illegal sentence under Rule 3:22-5, which governs motions
for post-conviction relief and procedurally bars this motion. Defendant argues
that he filed his motion pursuant to Rule 3:21-10(b)(5), which governs the
review of an illegal sentence, which can be heard at any time.
Rule 3:22-5 states: "A prior adjudication upon the merits of any ground
for relief is conclusive whether made in the proceedings resulting in the
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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."
Rule 3:21-10(b)(5) provides that "[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." Our Supreme Court has stated that "a
truly 'illegal' sentence can be corrected 'at any time.'" State v. Acevedo, 205
N.J. 40, 47 n.4 (2011) (quoting R. 3:21-10(b)(5)). "[A]n illegal sentence is one
that 'exceeds the maximum penalty provided in the Code for a particular offense'
or a sentence 'not imposed in accordance with law.'" Id. at 45 (quoting State v.
Murray, 162 N.J. 240, 247 (2000)).
Defendant does not provide any argument establishing that his
consecutive sentence was not authorized by law. Defendant's argument that the
trial court did not properly assess whether the sentence imposed should be
concurrent or consecutive to the sentence he was then serving was addressed in
our opinion on direct appeal.
Affirmed.
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