State of New Jersey v. William Tozer ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3025-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM TOZER, a/k/a
WILLIAM P. TOZER,
Defendant-Appellant.
________________________
Submitted October 2, 2024 – Decided October 21, 2024
Before Judges Currier and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Indictment No. 88-08-
0389.
William Tozer, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Thomas M. Caroccia, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant, William Tozer, appeals from a March 27, 2023 order denying
his second motion to correct an illegal sentence. We affirm.
I.
We distill the following relevant facts and procedural history from our
decision on direct appeal, State v. Tozer, No. A-4095-95 (App. Div. Jan. 4,
1999) (slip op. at 4-6), and the record. As we previously observed in upholding
defendant's conviction, the "proofs were overwhelming." Ibid.
On the same night in 1988, defendant separately attacked two elderly
victims in their homes after entering to commit burglaries, killing Reverend
Leon Blackman and seriously injuring Reverend Lawrence Moore. Physical and
forensic evidence tied defendant to the crime scene where Reverend Blackman
was strangled and beaten to death with a pipe. Reverend Moore survived his
attack and identified defendant, describing defendant's stabbing him in the arm
and washing himself in the sink, threatening "that'll finish you," before stabbing
Moore again in the side as he left the home.
Charged and tried for these crimes in late 1995, a jury, rejecting
defendant's intoxication defense, convicted defendant of murder, N.J.S.A.
2C:11-3(a)(1)-(2), felony murder, N.J.S.A. 2C:11-3(a)(3), two counts of
burglary, N.J.S.A. 2C:18-2, two counts of aggravated assault (second- and third-
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degree), N.J.S.A. 2C:12-1(b)(1) and (2), and possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d).1
At sentencing, the court considered the nature and circumstances of the
offenses as well as defendant's personal characteristics and history, including
his alcohol addiction and "substantial prior convictions." The court considered
the aggravating and mitigating factors particular to each offense, including the
heinous manner in which each attack was carried out and the advanced ages of
the victims, finding six aggravating factors, N.J.S.A. 2C:44-1(a)(1), (2), (3), (6),
(9), and (12), and no mitigating factors. The court expressly considered the
factors of State v. Yarbough, 100 N.J. 627, 643-44 (1985), detailing its reasons
under each consideration for imposition of consecutive sentences, specifically
addressing the reasons for the aggregate sentence and noting its view that merger
left four distinct offenses for consideration: murder, and that related burglary,
aggravated assault, and that related burglary.
1
The jury trial followed a remand by this court, reversing defendant's first
conviction after his guilty plea to felony murder and aggravated assault,
determining defendant's plea was not knowingly entered. See State v. Tozer,
No. A-5624-89 (App. Div. June 9, 1993) (slip op. at 7-8). Defendant pled guilty
pursuant to an agreement that he would not face a death sentence, unaware that
felony murder was not a capital offense. He was then tried on the original
charges with the possibility of capital punishment foreclosed.
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Accordingly, after merging the felony murder offense into the murder, and
the third-degree aggravated assault and possession of weapon charges into the
second-degree aggravated assault for which an extended term was granted
pursuant to N.J.S.A. 2C:44-3(a)(1), the court imposed twenty years'
imprisonment with ten years' parole ineligibility for the assault conviction
consecutive to a life sentence with thirty years' parole ineligibility for the
murder. Ten years' incarceration with five years' parole ineligibility was
imposed on each burglary consecutive to each other and consecutive to the
murder for an aggregate life sentence plus forty years with fifty-five years parole
ineligibility.
On direct appeal, we affirmed the conviction and affirmed the consecutive
sentences for the Blackman murder and the Moore aggravated assault. See
Tozer, No. A-4095-95, slip op. at 6. We vacated the consecutive sentences for
the two burglaries and imposed them to run concurrent with each other and with
the consecutive murder and aggravated assault sentences resulting in "an
aggregate sentence of life plus twenty years with forty years before parole
eligibility." Id. at 11-12.
Defendant then engaged in a protracted pursuit of post-conviction relief
(PCR). Between 2003 and 2009, defendant filed five unsuccessful petitions for
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PCR.2 In 2013, defendant's first motion to correct an illegal sentence pursuant
to Rule 3:21-10(b) was similarly denied. Any appeals of those denials were
similarly rejected. See State v. Tozer, No. A-0576-13 (App. Div. Oct. 1, 2014)
(order at ¶ 2); see also State v. Tozer, No. A-6212-03 (App. Div. Jan. 23, 2006)
(slip op. at 7-8).
In 2023, defendant filed a motion pursuant to Rule 3:21-10(b) challenging
again the imposition of consecutive sentences, arguing his sentence is illegal
because the trial court did not weigh the fairness of his aggregate sentence as
required under Yarbough and State v. Torres, 246 N.J. 246 (2021).
The PCR court denied defendant's motion after thoroughly chronicling the
history of the case and defendant's post-conviction challenges. Citing applicable
law, the court determined the application was essentially "an excessive sentence
argument and those must be raised in a direct appeal, not by way [of] an illegal
sentence motion or by way of a petition for [PCR]." Specifically, the court
found "defendant's assertion[s] regarding consecutive sentenc[es] or the absence
of reasons for imposing consecutive sentences do not relate to the issue of
sentence illegality and are not cognizable on PCR or under Rule 3:21-10(b)(5).
2
Defendant's Writ of Habeas Corpus petition was denied as untimely. See No.
08-2432, 2008 U.S. Dist. LEXIS 109475, at *13 (D.N.J. June 30, 2008).
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[See State v.] Acevedo, 205 N.J. [40,] 47 [(2011)]." Accordingly, the court
denied defendant's challenge as "without merit."
II.
Defendant appeals, self-represented, raising the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING
[DEFENDANT]'S MOTION FOR AN ILLEGAL
SENTENCE SINCE [DEFENDANT]'S SENTENCE IS
ILLEGAL AND HE IS ENTITLED TO A REMAND
FOR RESENTENCING BECAUSE THE TRIAL
COURT, IN OPTING TO IMPOSE HIS SENTENCES
CONSECUTIVELY TO EACH OTHER FAILED TO
WEIGH THE FAIRNESS OF HIS AGGREGATE
SENTENCE IN TERMS OF ITS REAL-TIME IN
VIOLATION OF STATE V. YARBOUGH, 100 N.J.
627 (1985) and STATE V. TORRES, 246 N.J. 246(2021).
POINT II
THE TRIAL COURT ERRED IN CONDUCTING THE
HEARING IN ABSENTIA AND NOT ASSIGNING
[DEFENDANT] A LAWYER.
III.
We find these claims lack sufficient merit to warrant extended discussion
in a written opinion. See R. 2:11-3(e)(2). We briefly summarize our reasons
for denying relief.
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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 . . . ." Claims asserting the illegality of
a sentence are reviewed de novo, State v. Nance, 228 N.J. 378, 393 (2017), as
are questions of law regarding whether claims are procedurally barred , see State
v. Robinson, 217 N.J. 594, 603-04 (2014).
Our Criminal Code does not define what constitutes an "illegal sentence,"
but our courts recognize "two categories of illegal sentences: those that exceed
the penalties authorized for a particular offense, and those that are not authorized
by law." State v. Hyland, 238 N.J. 135, 145 (2019). These categories "have
been 'defined narrowly.'" Ibid. (quoting State v. Murray, 162 N.J. 240, 246
(2000)). A "defendant's contentions regarding consecutive sentences or the
absence of reasons for imposition of the consecutive sentences do not relate to
the issue of sentence legality and are not cognizable on PCR, or under the
present Rule 3:21-10(b)(5) . . . ." Acevedo, 205 N.J. at 47 (internal quotation
marks omitted); see also Hyland, 238 N.J. at 145-46 (stating a sentence "is not
illegal if the sentencing judge fails to state the reasons for imposition of a
sentence . . . but otherwise imposes an authorized sentence.").
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Applying these principles, we concur that these claims are not cognizable
under Rule 3:21-10(b)(5) as the sentence is not illegal. Here, defendant's
arguments regarding the sentencing court's imposition of consecutive sentences
for the murder and aggravated assault offenses fall outside Rule 3:21-10(b)(5)'s
limited reach. See State v. Flores, 228 N.J. Super. 586, 596 (App. Div. 1988)
("perceiv[ing] no need to make [PCR] an open sesame for the wholesale review
of sentences."). The terms did not exceed their permissible statutory ranges, and
the extended term was properly imposed.
In addition, these precise challenges were previously considered and
denied on direct appeal and prior motion to correct the sentence. Critically, we
previously scrutinized the sentencing court's reasoning in imposing consecutive
sentences and determined the circumstances surrounding defendant's distinct
crimes "involv[ing] offenses in the homes of two victims at separate times
warrant[ed] the consecutive sentence for the murder and aggravated assault, and
we ha[d] no basis for disturbing the extended term sentence for aggravated
assault." Tozer, No. A-4095-95, slip op. at 11. We explicitly reviewed the
fairness of the aggregate sentence and modified the sentence regarding the
imposition of consecutive terms for the burglaries. Id. at 10. We affirmed the
trial court's denial of defendant's subsequent challenge to the legality of the
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adjusted sentence. Id. at 12. We need not address the consecutive nature of this
sentence again. See State v. Njango, 247 N.J. 533, 544 (2021).
We discern nothing in the Supreme Court's decision in Torres warranting
a different result. See generally Torres, 246 N.J. at 246. Torres did not create
a new rule of law requiring retroactive application. See State v. Feal, 194 N.J.
293, 308-09 (2008); see also State v. Burstein, 85 N.J. 394, 403 (1981) (stating
"retroactivity can arise only where there has been a departure from existing
law."). The Court instead reviewed fundamental sentencing principles and
"reiterate[d] the repeated instruction that a sentencing court's decision whether
to impose consecutive sentences should retain focus on 'the fairness of the
overall sentence.'" Torres, 246 N.J. at 270 (quoting State v. Miller, 108 N.J.
112, 121 (1987)). We have already reviewed and are again satisfied that
defendant's sentence is aligned with the core principles of fairness and
uniformity reinforced by the Supreme Court in Torres.
IV.
We similarly reject defendant's claims that the motion court erred in
failing to conduct a hearing or appoint counsel to represent him. Rule 3:21-
10(c) states that a "hearing need not be conducted . . . unless the
court . . . concludes that a hearing is required in the interest of justice."
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Similarly, Rule 3:21-10(c) leaves appointment of PCR counsel to the court's
discretion upon "a showing of good cause." As defendant's motion reprised
already-denied claims regarding his sentence that is not illegal within the
meaning of Rule 3:21-10(b), we discern no abuse of discretion in the motion
court's decisions on these related matters.
Affirmed.
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