STATE OF NEW JERSEY VS. ALTERICK KELLY (98-08-3556, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2086-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALTERICK KELLY, a/k/a
CLARENCE KELLY,
AL-TERICK KELLY,
GLEN KELLY, ARNALD
STITH, TRYEE STITH,
KHALIF STITH, ARNOLD
STITH, and CLARENCE
YOUND,
Defendant-Appellant.
_______________________
Submitted February 10, 2021 – Decided March 4, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 98-08-3556.
Alterick Kelly, appellant pro se.
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Stephen A.
Pogany, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Alterick Kelly appeals from a November 6, 2019 order denying
his second motion to correct an illegal sentence. We affirm.
We recounted the underlying facts in our opinion on direct appeal:
At approximately 1:00 a.m. on April 29, 1998,
Newark police officers responded to a report of shots
fired in the backyard lot of 25 Aster Street. The bodies
of Derrick Powell and Jhidoniane Anderson were
discovered slumped over each other and riddled with
multiple gun shot wounds. The bodies were surrounded
by spent shell casings from three separate weapons: a
.38 caliber, a .380 caliber and a 9mm. Officer Johnny
Faulkner was one of the first at the scene, and he saw
drops of blood on the ground leading away from the
bodies. He followed a trail of blood west on to Murray
Street and south on Brunswick Street, to a building at
86 Brunswick Street. Faulkner then notified the officer
in charge, Lieutenant James D. O'Connor, of his
observations.
O'Connor testified that he and a team of officers
followed the fresh blood trail found by Officer Faulkner
which led to an apartment building, into the foyer and
to the door at apartment 1A. Believing that an injured
person was in the apartment, whether it be a murderer
or an innocent victim, O'Connor knocked on the door.
A woman, later identified as Delfonda Swint, opened
the door, and O'Connor saw a man, later identified as
defendant, standing two feet behind her with a black
pistol in his hand. One of the other officers pulled
Swint out of the way, and O'Connor and another officer
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ran into the apartment. The man holding the gun fled
further back into the apartment. O'Connor saw two
other men in the apartment as he entered. Later
identified as co-defendants Deshawn Stith and Stephen
Whitley, these men were secured by other officers as
O'Connor pursued the man with a gun into the kitchen.
O'Connor next saw the defendant's arm coming down
as if he had placed something on top of a kitchen
cabinet, and he observed blood trickling from the
cabinet. When the defendant was told to show his
hands, he did not do so, holding the left side of his body.
O'Connor then wrapped his hands around and
discovered that defendant was wounded. After the
apartment was secured, a .38 caliber handgun, a .380
caliber handgun, and a 9mm handgun were located on
top of the kitchen cabinets. The suspects were arrested
and read their rights.
....
At trial co-defendants Stith and Whitley testified
for the State after pleading guilty to aggravated
manslaughter. Whitley testified that the killing was
Kelly's idea because there was a turf war with the
victims and that "either we kill them or they're going to
kill us." He said that all three assailants had a gun and
that defendant had the 9mm. He said that Kelly lured
the victims to the back lot and they pulled out the guns
at the same time and started shooting. He said that
Kelly was shot accidently during the execution of the
two victims. Whitley's testimony was corroborated by
Stith, who said that they all agreed to kill the two
victims, and they all participated in the shooting.
Defendant testified in his own defense that he
was "just hanging out" drinking with the co-defendants
when a patrolman told them to move off of the street.
They went into the back lot where they confronted the
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victims. Defendant said that Stith had two guns, and
Whitley had another. When the two co-defendants
started shooting the victims, defendant said he tried to
intervene and was accidently shot. After the shooting,
they all went to Swint's apartment where defendant
tried to treat his wound. When the police entered a few
minutes later, he said he did not have a gun in his hand
but rather a black cordless phone.
[State v. Kelly (Kelly I), A-1744-00 (App. Div. July 5,
2002) (slip op. at 1-4), certif. denied, 174 N.J. 548(2002).]
An Essex County grand jury returned an indictment charging defendant,
Stith, and Whitley with first-degree murder of Powell and Anderson (counts one
and two), N.J.S.A. 2C:11-3; three counts of third-degree unlawful possession of
a weapon (counts three, five, and seven), N.J.S.A. 2C:39-5(b); three counts of
second-degree possession of a firearm for an unlawful purpose (counts four, six,
and eight), N.J.S.A. 2C:39-4(a); and fourth-degree possession of a defaced
firearm (count nine), N.J.S.A. 2C:39-3d. We recounted the subsequent
procedural history in our opinion on appeal from the denial of defendant's
petition for post-conviction relief (PCR):
On June 13, 2000, a jury convicted defendant of
the first-degree aggravated manslaughter of Derrick
Powell, N.J.S.A. 2C:11-4(a), as a lesser-included
offense of murder (count one); the aggravated
manslaughter of Jhidoniane Anderson, also as a lesser-
included offense of the original charge of murder
(count two); third-degree unlawful possession of a
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firearm, N.J.S.A. 2C:39-5(b) (count seven); and
second-degree possession of a firearm for unlawful
purpose, N.J.S.A. 2C:39-4(a) (count eight). Defendant
was sentenced on July 28, 2000, to thirty years
imprisonment on count one, subject to eighty-five
percent parole ineligibility in accord with the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2; twenty years
subject to NERA on count two, consecutive to count
one; five years imprisonment on count seven,
concurrent to count two and consecutive to count one;
and ten years with five years of parole ineligibility on
count eight, concurrent to count two and consecutive to
count one.
....
[Co-defendants] Stith and Whitley entered guilty
pleas to two aggravated manslaughter charges. In
exchange for their guilty pleas and their agreement to
testify truthfully in defendant's trial, Whitley received
an aggregate sentence of twenty-four years subject to
NERA, and Stith received an aggregate twenty-five
years subject to NERA.
[State v. Kelly (Kelly II), No. A-4331-07 (App. Div.
Dec. 10, 2009) (slip op. at 1-4) (footnote omitted).]
We affirmed defendant's conviction and sentence on direct appeal except
for count eight, which we remanded to the trial court for entry of amended
judgment of conviction reflecting a merger of that charge. Kelly I.
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On August 24, 2004, defendant filed a pro se PCR petition. Counsel was
assigned to represent him. Defendant raised a Blakely1/Natale2 sentencing
argument that he again raises in this appeal. On January 11, 2008, the PCR court
denied his claim, finding the case was not in the pipeline at the time of the
Supreme Court's decision in Natale, the sentence appears "to be totally
appropriate in the circumstances," the Appellate Division had already reviewed
the sentence and found it was not excessive, and, therefore, sentencing should
not be revisited. In his appeal from the denial of PCR, defendant did not argue
that his sentence violated Blakely or Natale. See Kelly II, slip op. at 1.
In December 2010, defendant filed a petition for habeas corpus in the
United States District Court for the District of New Jersey. Kelly v. Bartkowski
(Kelly III), No. 11-363 (DMC), 2012 U.S. Dist. LEXIS 100627, at *6 (D.N.J.
July 19, 2012). Ground eleven of his petition stated: "The sentence imposed on
[defendant] by the trial judge was contrary to the clearly established federal
precedent set forth in Blakely v. Washington." Id. at *10. The District Court
found that defendant raised this claim before the PCR court, which denied his
request. Id. at *45. The District Court noted the "Supreme Court of New Jersey
1
Blakely v. Washington, 542 U.S. 296 (2004).
2
State v. Natale, 184 N.J. 458 (2005).
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held that the rule it announced in Natale was applicable retroactively only to
cases in the direct appeal pipeline as of the date of that decision, August 2,
2005." Id. at *49. Defendant "had already concluded his direct appeals by the
date of the Natale decision; thus, the Natale decision did not entitle him to relief,
as a matter of state law." Ibid. Accordingly, it held that "whether or not the
sentence was imposed in violation of the rules announced in the Apprendi/Natale
line of cases, [defendant] is not entitled to relief in this federal collateral
proceeding." Id. at *49-50.
On December 11, 2012, defendant filed a motion to correct an illegal
sentence. The trial court denied the motion on April 14, 2014. We affirmed.
The Supreme Court denied certification. State v. Kelly, 223 N.J. 280 (2015).
Defendant filed a second motion to correct an illegal sentence on October
21, 2019. He claimed that his thirty-year NERA term on count one was above
the presumptive statutory term and is not based solely on any prior conviction,
in violation of his Sixth Amendment right to jury trial. The trial court denied
the motion on November 6, 2019. In its accompanying written decision, the
court found:
The holding in [Natale] is inapplicable to your
case. The Supreme Court of New Jersey held that
[Natale] only applied to defendants with cases on direct
appeal as of the decision date of [Natale] and to those
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defendants who raised claims arising out of Blakely v.
Washington, 542 U.S. 296 (2004) at trial or on direct
appeal. Natale 184 N.J. at 495. Your appeal was
decided in 2002, three years prior to Natale.
Additionally, the [c]ourt has no evidence or reason to
believe that either you or your attorney raised a Blakely
claim at trial or on direct appeal. Furthermore, the
[c]ourt is completely unpersuaded by the logic of your
argument advanced in footnote [one] of your brief[.]
Natale is simply inapplicable to your case.
This appeal followed. Defendant argues:
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO CORRECT AN
ILLEGAL SENTENCE UNDER BLAKELY V.
WASHINGTON
"[A]n illegal sentence is one that 'exceeds the maximum penalty . . . for a
particular offense' or a sentence 'not imposed in accordance with law.'" State v.
Acevedo, 205 N.J. 40, 45 (2011) (quoting State v. Murray, 162 N.J. 240, 247
(2000)). "That includes a sentence 'imposed without regard to some
constitutional safeguard.'" State v. Zuber, 227 N.J. 422, 437 (2017) (quoting
State v. Tavares, 286 N.J. Super. 610, 618 (App. Div. 1996)). "A defendant may
challenge an illegal sentence at any time." Ibid. (citing R. 3:21-10(b)(5);
Acevedo, 205 N.J. at 47 n.4).
The trial court correctly held that the new constitutional rule adopted in
Natale applied only to defendants with cases on direct appeal as of the decision
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date in Natale and to those defendants who raised Blakely claims at trial or on
direct appeal. Defendant does not fall within either of those categories. Natale
was decided on August 2, 2005. His direct appeal was decided by this court on
July 5, 2002. Defendant did not raise a Blakely claim at trial or on direct appeal.
Accordingly, Natale does not apply to defendant's sentence. The motion was
properly denied on that basis.
Defendant's sentence on counts one and two, which was affirmed on direct
appeal, is not otherwise illegal. Notwithstanding the provisions of N.J.S.A.
2C:43-6(a)(1), the ordinary base term for first-degree aggravated manslaughter
is between ten and thirty years. N.J.S.A. 2C:11-4(c). Here, defendant was
sentenced to a thirty-year NERA term on count one and a consecutive twenty-
five-year NERA term on count two. The prison terms fall within the statutory
range and do not exceed the maximum penalty. Claims that a sentence "within
the range permitted by a verdict" is excessive must be raised on direct appeal,
State v. Hess, 207 N.J. 123, 145 (2011), and "are not cognizable . . . under the
present Rule 3:21-10(b)(5)," Acevedo, 205 N.J. at 47.
In addition, "[a] prior adjudication upon the merits of any ground for relief
is conclusive whether made in proceedings resulting in the conviction or in any
post-conviction proceeding brought pursuant to [Rule 3:22] . . . or in any appeal
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taken from such proceedings." R. 3:22-5. Defendant raised a Natale/Blakely
claim in his prior PCR proceeding, which was denied on the merits by the PCR
court. He is barred from relitigating that claim.
Affirmed.
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