SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Argued October 8, 2002 -- Decided November 21, 2002

PER CURIAM

        The question presented in this appeal is whether it is illegal for a sentencing judge to specify that the less restrictive sentence be served prior to the more restrictive sentence when consecutive sentences are imposed at the same time for convictions arising from a single trial.

        In 1991, Ellis was tried in Essex County on consolidated charges arising from acts committed in Bergen and Essex Counties. He was found guilty of multiple offenses which merged for purposes of sentencing into two first-degree robbery convictions. The robberies were committed about a month apart but on the same victim, a sixty-year-old woman. The violence employed against the victim was substantial.

        On May 20, 1991, Ellis was sentenced to consecutive sentences, one of twenty years with a ten-year parole disqualifier, and the other of fifteen years “flat.” The sentencing court emphatically specified that the fifteen-year flat sentence was to be served first, stating that Ellis would begin serving the ten-year parole disqualifier only after he became eligible for parole on the flat term. The judgment of conviction was equally explicit.

        Ellis took a direct appeal to the Appellate Division and the judgment was affirmed. The issues raised on appeal included a challenge to the imposition of a minimum period of parole ineligibility without a proper balancing of aggravating and mitigating factors. Ellis filed a petition for post-conviction relief that was denied by the trial court in 1996, and the Appellate Division affirmed in 1999. The Supreme Court granted certification and remanded to the Appellate Division on an unrelated issue. On remand, the Appellate Division again affirmed. None of these appellate proceedings included a claim by Ellis that his sentence was illegal.

        In 1999, Ellis moved pursuant to R. 3:21-10(b) for a change of sentence, alleging for the first time that the trial court’s specification of the order of sentences was illegal. The trial court treated the motion as a second petition for post-conviction relief and denied it on the merits. Ellis subsequently sought entry into a drug rehabilitation program that was also denied. These adjudications were appealed to the Appellate Division.

        The Appellate Division affirmed the denial of the petition for post-conviction relief. State v. Ellis, 346 N.J. Super. 583 (2002). The majority opinion was written by Judge Ciancia. The Appellate Division requested the State Parole Board to submit an amicus brief. The Appellate Division found the Parole Board’s brief helpful in explaining the practical consequences of Ellis’s sentence and in providing other information relating to the intricacies of establishing an initial parole date. In essence, the trial court’s direction that the less restrictive sentence be served before the more restrictive sentence resulted in an initial parole eligibility date approximately three years later than if the more restrictive sentence had been served first – May 1, 2003 as opposed to April 7, 2000. If the more restrictive sentence were served first, the flat consecutive sentence would have had no influence at all on the initial parole eligibility date, meaning the result would be the same as if concurrent sentences had been imposed.

         The Appellate Division noted that a trial court’s discretion in imposing consecutive or concurrent sentences is guided by the precepts of State v. Yarborough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014 (1986). It further noted that in a prior Appellate Division case, State v. Lane, 279 N.J. Super. 209 (App. Div. 1995), Yarborough was interpreted to require that where consecutive sentences are imposed, the sentencing court must direct that the most restrictive sentence is to be served first. The Appellate Division found Lane to be a misreading of Yarborough, since the holding of Lane was based on provisions of the Model Sentencing and Corrections Act which were not adopted in Yarborough. According to the Appellate Division, nothing in Yarborough or its guidelines precluded a sentencing judge from requiring a less restrictive term to be served before the more restrictive term.

        The Appellate Division also explained that in subsequent cases considering the Yarborough factors, the Supreme Court has taken an expansive view of the discretion vested in a sentencing court when deciding whether to impose consecutive or concurrent sentences. The Appellate Division stated that given this approach, it could not conclude that a court’s direction to serve one sentence prior to another could constitute an illegal sentence. It noted that the goal of consecutive sentences is to incarcerate a defendant for a longer period of time than would result from a concurrent sentence. The Appellate Division reasoned that the sentence imposed here achieves that goal, while requiring the more restrictive sentence to be served first would not have achieved that goal.

        The Appellate Division made it clear that it was not addressing the wisdom of the sentence or testing it against the norms of judicial discretion. It explained that the issue whether Ellis’s sentence was excessive or an abuse of discretion was not cognizable on post-conviction relief, but was required to have been raised on direct appeal. In fact, Ellis had challenged his sentence on his direct appeal, and the Appellate Division found no merit to the issues raised. The Appellate Division concluded that Ellis’s attempt to use R. 3:21-10(b) to claim illegality of sentence was improper, and that the trial court correctly treated his motion as a post-conviction relief petition asserting illegality of sentence under R. 3:22-12.

        Judge Lesemann filed a concurring opinion, disagreeing with the majority’s conclusion that Ellis’s request for relief was not cognizable in that proceeding. Judge Lesemann was of the view that Ellis had raised a claim of an illegal sentence. Nonetheless, he concluded that under the circumstances of the case, a remand would amount to a meaningless gesture because it would not result in a different sentence.

        The Supreme Court granted the petition for certification filed by Ellis.

HELD: The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in the majority opinion of Judge Ciancia below. It was not illegal for the sentencing court to specify that Ellis serve the flat term before the term with a parole disqualifier when imposing consecutive sentences. The request by Ellis for review of his sentence amounts to a claim that the sentence was excessive and is not cognizable in a proceeding for post-conviction relief.

         CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI and ALBIN join in this opinion.

SUPREME COURT OF NEW JERSEY
A- 98 September Term 2001


STATE OF NEW JERSEY,

    Plaintiff-Respondent,

        v.

DERRICK ELLIS,

    Defendant-Appellant.

Argued October 8, 2002 – Decided November 21, 2002

On certification to the Superior Court, Appellate Division, whose opinion is reported at 346 N.J. Super. 583 (2002).

Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Michael J. Williams, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Acting Attorney General of New Jersey, attorney).

Gregory A. Spellmeyer, Deputy Attorney General, submitted a letter in lieu of brief on behalf of amicus curiae, New Jersey State Parole Board (Peter C. Harvey, Acting Attorney General of New Jersey, attorney).

PER CURIAM

    The judgment is affirmed, substantially for the reasons expressed in Judge Ciancia’s majority opinion of the Appellate Division, reported at 346 N.J. Super. 583 (2002).
    CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, ZAZZALI, and ALBIN join in this opinion.

    SUPREME COURT OF NEW JERSEY

NO.     A-98    SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court    

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

    v.

DERRICK ELLIS,

    Defendant-Appellant.

DECIDED November 21, 2002    
    Chief Justice Poritz    PRESIDING
OPINION BY Per Curiam    
CONCURRING OPINION BY
DISSENTING OPINION BY

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