STATE OF NEW JERSEY VS. VERNON L. SIMMONSÂ (84-05-0329, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1184-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERNON L. SIMMONS,
Defendant-Appellant.
________________________________
Submitted July 6, 2017 – Decided July 19, 2017
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 84-05-0329.
Vernon L. Simmons, appellant pro se.
Scott A. Coffina, Burlington County
Prosecutor, attorney for respondent (Jennifer
B. Paszkiewicz, of counsel and on the brief).
PER CURIAM
Defendant Vernon L. Simmons appeals from amended judgments
of conviction (JOC) entered by the Law Division on March 25, 2015
and September 30, 2015, which corrected errors in the original JOC
dated February 22, 1985. We affirm.
Following a seven-day trial, a jury convicted defendant of
two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2)
(counts one and two),1 and unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b) (count three). State v. Simmons, No. A-3370-
84 (App. Div. January 23, 1987) (slip op. at 1), certif. denied,
107 N.J. 628 (1987). The trial court sentenced defendant to
concurrent life terms on counts one and two, with a thirty-year
period of parole ineligibility on each count, and to a five-year
concurrent term on count three. Id. at 1-2.
On direct appeal, we affirmed defendant's convictions. Id.
at 4. However, we held that defendant's two murder convictions
should have been merged by the trial court at the time of
sentencing. Ibid. Therefore, we merged the two convictions,
vacated "the concurrent term imposed for [the] second murder
conviction[,]" and "remanded for correction of the [JOC]." Ibid.
In all other respects, we affirmed defendant's sentence.2
1
There was only one victim. The indictment charged defendant
with purposely causing the victim's death or serious bodily injury
resulting in death under count one, and with knowingly causing the
victim's death or serious bodily injury resulting in death under
count two.
2
Over the course of the next twenty-six years, defendant filed
four unsuccessful petitions for post-conviction relief in our
state courts. See State v. Simmons, No. A-3489-09 (App. Div. May
19, 2011) (slip op. at 3-5) (summarizing the petitions), certif.
denied, 209 N.J. 596 (2012). Defendant also filed several
2 A-1184-15T4
Unfortunately, the trial court did not issue a corrected JOC.
However, as a result of a request for clarification from the Parole
Board regarding the merger of counts one and two in connection
with defendant's first application for parole, a trial judge
reviewed our January 23, 1987 decision on defendant's direct
appeal, and issued an amended JOC on March 25, 2015. In pertinent
part, the amended JOC stated:
The [JOC] and Order for Commitment dated
February 22, 1985 remains in FULL FORCE and
EFFECT except for the following correction:
1. Per Appellate Decision from January 23,
1987, Counts 1 and 2 are merged and the
concurrent term imposed for a second murder
conviction is vacated.
However, under the heading "Total Custodial Term" at the
bottom of the first page of the JOC, the trial court mistakenly
wrote "030 Years 00 Months 000 Days[.]" This entry was plainly
incorrect because defendant had been sentenced to a life term,
with a thirty-year period of parole ineligibility, and not to a
thirty-year term as now reflected in the March 25, 2015 amended
JOC.
unsuccessful petitions for a writ of habeas corpus in the federal
courts. See Simmons v. Lagana, Civ. No. 12-2237 (RBK) (D.N.J.
August 26, 2013) (slip op. at 1-6) (summarizing the petitions).
3 A-1184-15T4
Subsequently, this error was brought to the trial judge's
attention and, on September 30, 2015, the judge entered a new
corrected JOC. In pertinent part, this JOC stated:
The Judgment[s] of Conviction[] and Orders for
Commitment dated February 22, 1985 and [March
25, 2015] remain[] in full force and effect
except for the following correction:
1. The original sentence should have read –
the Defendant is sentenced to life in prison;
30 years without parole. This sentence has
not changed per the Decision of the Appellate
Division.
Following the entry of the new JOC, defendant filed his
current appeal. Defendant contends that once the trial court
issued the March 25, 2015 amended JOC mistakenly stating that his
total term was thirty years, rather than life in prison with thirty
years of parole ineligibility, the court was barred from correcting
this error and he should have been released from prison because
he had served thirty years of his sentence. Specifically,
defendant contends:
POINT 1
SENTENCE OF SEPTEMBER 30, 2015 WAS ILLEGAL AND
NOT IMPOSED ACCORDING TO LAW IN VIOLATION OF
STATE LAW AND DEFENDANT'S DUE PROCESS RIGHTS
UNDER STATE & FEDERAL CONSTITUTIONS.
THEREFORE IT MUST BE THROWN-OUT AND AMENDED
SENTENCE OF MARCH 25, 2015 REINSTATED WITH THE
IMMEDIATE RELEASE OF DEFEN[D]ANT.
4 A-1184-15T4
Having considered defendant's contentions in light of the
record and the applicable law, we conclude that that they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We add the following brief comments.
Over fifty years ago, our Supreme Court held that errors in
sentencing a defendant may be corrected under Rule 1:13-1 without
violating the protection against double jeopardy. State v.
Matlack, 49 N.J. 491, 501-02, cert. denied, 389 U.S. 1009, 88 S.
Ct. 572, 19 L. Ed. 2d 606 (1967). Rule 1:13-1 provides:
Clerical mistakes in judgments, orders or
other parts of the record and errors therein
arising from oversight and omission may at any
time be corrected by the court on its own
initiative on the motion of any party, and on
such notice and terms as the court directs,
notwithstanding the pendency of an appeal.
Here, the March 25, 2015 amended JOC was clearly incorrect
because, as specifically held in our decision on direct appeal,
defendant was sentenced to life in prison, with a thirty-year
period of parole ineligibility, and not to a thirty-year term as
reflected in the amended JOC. Contrary to defendant's argument,
the trial court was not barred from correcting this mistake. As
the Court stated in Matlack:
No fundamental right of [a] defendant will be
violated if an inadvertent clerical-type error
is corrected, and he [or she] receives the
sentence which the trial judge intended him
[or her] to receive. The protection against
5 A-1184-15T4
double jeopardy bars double punishment for the
same conviction, but does not prevent
correction of a clerical error so that the
sentence actually intended by the initial
exercise of judicial discretion may be given
a defendant. The Constitution does not
prevent correction of inadvertent errors in
sentencing.
[Matlack, supra, 49 N.J. at 502.]
Thus, the trial court properly corrected the error in the
March 25, 2015 JOC by issuing the September 30, 2015 JOC, which
set forth defendant's proper sentence. R. 1:13-1.
Affirmed.
6 A-1184-15T4