STATE OF NEW JERSEY VS. DWAYNE KNIGHT (90-11-5153, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-1960-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DWAYNE KNIGHT, a/k/a
STONEY KNIGHT,
Defendant-Appellant.
_____________________________
Submitted November 14, 2019 – Decided January 16, 2020
Before Judges Nugent and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 90-11-5153.
Dwayne Knight, appellant pro se.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Dwayne Knight appeals from the September 12, 2018 order
that denied his motion under Rule 3:21-10(b)(5) to correct an illegal sentence.
We affirm the order.
In 1991, defendant was convicted of multiple offenses, including second -
degree burglary, N.J.S.A. 2C:18-2; fourth-degree aggravated assault, N.J.S.A.
2C:12-1(b)(4); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two
counts of first-degree robbery, N.J.S.A. 2C:15-1; felony murder, N.J.S.A.
2C:11-3(a)(3); first-degree murder, N.J.S.A. 2C:11-3(a)(1); third-degree
possession of a prohibited weapon, N.J.S.A. 2C:39-3(b); third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(c)(1);
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and
second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
4(a).
The convictions arose from a homicide in connection with a robbery.
[D]efendant, along with co-defendants Leon Durham
and Thomas Dollard, accosted two persons in the
stairway of an apartment building on Irving Turner
Boulevard in Newark, unsuccessfully sought to rob
them, and then forced them to accompany the three
defendants while they conducted a home invasion for
the purpose of armed robbery and to obtain drugs.
During the home invasion, one of the residents was
A-1960-18T4
2
fatally shot in the chest by Dollard, using a sawed-off
shotgun carried to the residence by Knight. At the
conclusion of the incident, Knight sought to kill one of
the two people that the three defendants had initially
accosted. However, the victim escaped by diving
through a closed window, breaking his wrist. Defendant
was identified as one of the perpetrators when the bag
he had utilized to carry the shotgun was traced to the
son of defendant's girlfriend. He subsequently
confessed to his participation in the crime.
[State v. Knight, No. A-6408-06 (App. Div. Sept. 15,
2008) (slip op. at 3).] 1
Defendant was sentenced to a life term with a period of parole
ineligibility. The sentencing court merged the purposeful and knowing murder
count into the felony murder count for sentencing. Defendant was sentenced on
the felony murder count to term of life with a thirty-year period of parole
ineligibility. Defendant's convictions were affirmed on appeal and the Supreme
Court denied certification. See State v. Knight, 136 N.J. 296 (1994). Defendant
filed two petitions for post-conviction relief, both of which were denied. These
orders were affirmed on appeal and certification was denied. State v. Knight,
157 N.J. 646 (1999); State v. Knight, 197 N.J. 476 (2009). Defendant
1
We cite to this unreported decision only because it involves this defendant.
A-1960-18T4
3
unsuccessfully filed for habeas corpus relief in the federal District Court, and
the Third Circuit Court of Appeals.2
Defendant filed a motion in 2018 to correct what he alleged to be an illegal
sentence. He argued his sentence was illegal "because instead of merging
purposeful and knowing murder into felony murder[,] the trial court should have
merged felony murder into the conviction for purposeful and knowing murder
pursuant to State of New Jersey v. Jermile Omar Mayo, [Nos. A-4078-97; A-
4160-97 (App. Div. Jan. 19, 2000) (slip op. at 11).]"
The trial court denied defendant's motion, finding the sentence of "a 'term
of life' with [thirty] years parole ineligibility is not an illegal sentence" and that
merging "purposeful and knowing murder with felony murder had no impact on
defendant's overall sentence[.]"
Defendant raises this issue on appeal:
THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT'S MOTION TO CORRECT AN
ILLEGAL SENTENCE PURSUANT TO RULE 3:21-
10(B)(5)[.]
2
We have omitted description of these proceedings because none of the
underlying orders was included in the appendix nor do those proceedings appear
to relate to the issue on appeal raised by defendant.
A-1960-18T4
4
Whether a sentence is illegal is an issue of law that we review de novo.
State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2016). "An illegal sentence
that has not been completely served may be corrected at any time without
impinging upon double-jeopardy principles." State v. Austin, 335 N.J. Super.
486, 494 (App. Div. 2000). Recently, our Supreme Court has reiterated "[t]here
are 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) (citing State v. Schubert, 212 N.J. 295, 308
(2012)). These categories "have been 'defined narrowly.'" Ibid. (quoting State
v. Murray, 162 N.J. 240, 246 (2000)). "[E]ven sentences that disregard
controlling case law or rest on an abuse of discretion by the sentencing court are
legal so long as they impose penalties authorized by statute for a particular
offense and include a disposition that is authorized by law." Id. at 146. Under
Rule 3:21-10(b), "an order may be entered at any time . . . correcting a sentence
not authorized by law including the Code of Criminal Justice . . . ."
Defendant's argument is that the felony murder conviction should have
merged into the purposeful and knowing murder conviction not the other way
around. See State v. Watson, 261 N.J. Super. 169, 181 (App. Div. 1992)
(providing that "the felony murder convictions should have merged into that for
A-1960-18T4
5
purposeful and knowing murder"). Both offenses, however, carry the same
sentence: thirty years to life with a thirty-year period of parole ineligibility. The
order in which the judge merged the two offenses is irrelevant.
Defendant does not dispute the sentence was authorized by the statute and
that it did not exceed the maximum custodial term. 3 Even if there were an error
in terms of the order in which the judge described the merger, this error did not
constitute an illegal sentence. See Rule 3:21-10(b)(5). See also State v. Eckert,
410 N.J. Super. 389, 408 (App. Div. 2009) (distinguishing between a sentencing
error and an illegal sentence). 4 Thus, the trial court correctly denied defendant's
motion to correct an illegal sentence.
Affirmed.
3
Defendant relies on the same unreported decision he cited before the trial
court. An unreported decision does not constitute precedent. It is improper to
cite and rely upon an unreported decision except as allowed by Rule 1:36-3.
4
Defendant is out of time to correct any sentencing error about the greater
offense being merged into the lesser. See R. 3:21-10(a).
A-1960-18T4
6