STATE OF NEW JERSEY VS. DARRYL DAVIS (91-01-0061, 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NOT FOR PUBLICATION WITHOUT THE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-2681-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRYL DAVIS,
Defendant-Appellant.
_________________________
Submitted September 10, 2019 – Decided November 14, 2019
Before Judges Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 91-01-0061.
Ferro and Ferro, attorneys for appellant (Nancy C.
Ferro, on the briefs).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Scott Joseph Gershman, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Darryl Davis appeals from a November 14, 2017 Law Division
order denying his motion to correct an allegedly illegal sentence. We affirm.
This case arises from the July 1987 murder and robbery of Gamal Sledge
in Newark. Defendant bludgeoned Sledge with a barbell in Sledge's apartment
and left him to die. In 1992, a jury found defendant guilty of first -degree
murder, first-degree felony murder, first-degree robbery, and third-degree theft.
The State moved for the imposition of a discretionary extended term, which the
trial court denied (when defendant was sentenced in 1992, murder was not a
crime for which the court could impose an extended term). On the first-degree
murder count, defendant received a custodial term of life, with a thirty -year
period of parole ineligibility, and on the first-degree robbery count, the court
sentenced defendant to a consecutive custodial term of twenty years, with a ten-
year period of parole ineligibility. The remaining two counts merged.
We affirmed defendant's conviction and sentence on direct appeal. State
v. Davis, No. A-3430-92 (App. Div. July 5, 1995). Thereafter, the trial court
denied defendant's petition for post-conviction relief (PCR). We affirmed the
denial of PCR. State v. Davis, No. A-3527-99 (App. Div. May 1, 2001). The
Supreme Court thereafter denied defendant's petition for certification. State v.
Davis, 169 N.J. 610 (2001).
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In August 2016, defendant filed a "motion to correct illegal sentence." At
sentencing, the trial judge denied the State's motion for an extended term
"because the sentence will adequately punish the defendant and it will
adequately protect society from the defendant, and there are other reasons I
prefer not to express, but basically I don't think it is necessary and I don't think
it is appropriate." Defendant argued that the sentencing judge improperly
withheld the "other reasons" he preferred "not to express," while at the same
time imposing a de facto extended term.
Judge Timothy P. Lydon denied defendant's motion, concluding that
defendant's claim was already rejected on direct appeal:
Defendant's appeal alleged that the trial court imposed
an excessive sentence. The Appellate Division
addressed his claim and concluded that the trial court
properly addressed its discretion to impose the
consecutive sentence. It found that the overall sentence
reflected the extent of defendant's record and the
viciousness of the crimes for which he was sentenced.
Because this court previously considered the same arguments raised in
defendant's motion to correct his sentence, and "determined that his claims
lacked merit," Judge Lydon denied defendant's motion, citing State v. McQuaid,
147 N.J. 464, 484 (1997) ("A prior adjudication on the merits ordinarily
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constitutes a procedural bar to the reassertion of the same ground as a basis for
post-conviction review.")
Judge Lydon further noted that the Supreme Court previously addressed
the same excessive sentencing claim as presented in defendant's motion in State
v. Acevedo, 205 N.J. 40, 45 (2011). In that case, the defendant argued he
received an illegal sentence because the sentencing judge failed to provide a
statement of reasons for imposing a consecutive sentence. Id. at 42. As Judge
Lydon explained, the Court in Acevedo held that "a motion to correct an illegal
sentence 'do[es] not bestow upon a reviewing court the right to either amend or
modify consecutive sentences . . . because the reasons for imposition of
consecutive sentences were not stated.'"
This appeal followed, with defendant presenting the following argument:
THE COURT BELOW ERRED IN AFFIRMING THE
SENTENCING JUDGE'S DECISION IN WHICH THE
COURT STATED THAT CERTAIN REASONS
WOULD NOT BE EXPRESSED.
We find no merit in this argument and affirm substantially for the reasons
stated by Judge Lydon in his cogent written opinion. We add the following
comments.
"[A] truly 'illegal' sentence can be corrected 'at any time.'" Acevedo, 205
N.J. at 47 n.4 (2011) (quoting R. 3:21-10(b)(5); R. 3:22-12). "[A]n illegal
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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)). A sentence "not imposed
in accordance with law" includes a "disposition [not] authorized by the Code."
Murray, 162 N.J. at 247. However, "mere 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).
As Judge Lydon noted, this court previously rejected defendant's claim
that his sentence was excessive. Moreover, the sentencing judge did not impose
an extended-term sentence, as defendant claims. The judge imposed the legally-
authorized sentence for murder and also imposed the legally-authorized
consecutive sentence for the separate robbery conviction.
Affirm.
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