State of New Jersey v. Fuquan Khalif

• Court: New Jersey Superior Court Appellate Division
• Decided: December 17, 2025
• Docket: A-1471-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1471-24

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FUQUAN KHALIF, a/k/a FUQUAN KAHALIF, and ALFRED WALKER,

Defendant-Appellant. _________________________

Argued November 18, 2025 – Decided December 17, 2025

Before Judges Rose and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 91-01-0437.

Fuquan Khalif, appellant, argued the cause on appellant's behalf.

Lucille M. Rosano, Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Essex County Prosecutor, attorney; Lucille M. Rosano, of counsel and on the brief).

PER CURIAM Defendant Fuquan Khalif appeals from the December 6, 2024 Law

Division order denying his motion to correct an illegal sentence. We affirm in

part, vacate in part, and remand for further proceedings.

I.

In 1991, defendant was charged in an eighteen-count indictment arising

from the murder of his cousin and attempted murder of her fiancé, both of whom

he shot in the head. A jury convicted defendant of fourteen counts : second-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count five); third-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count six); third-degree criminal

restraint, N.J.S.A. 2C:13-2 (count seven); third-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b) (count eight); second-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count nine); third-degree

receiving stolen property, N.J.S.A. 2C:20-7 (count ten); third-degree terroristic

threats, N.J.S.A. 2C:12-3 (count eleven); second-degree burglary, N.J.S.A.

2C:18-2 (count twelve); aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count

thirteen); felony murder, N.J.S.A. 2C:11-3(a) (count fourteen); first-degree

attempted murder, N.J.S.A. 2C:5-1 and :11-3(a) (count fifteen); fourth-degree

retaliation against a witness, N.J.S.A. 2C:28-5(b) (count sixteen); third-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seventeen); and

A-1471-24 2 second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (count eighteen).

In 1992, the trial court sentenced defendant to a life term with a thirty-

year period of parole ineligibility on count fourteen (felony murder). On count

fifteen (attempted murder), defendant received a consecutive sentence of twenty

years with a ten-year period of parole ineligibility. A concurrent sentence of

five years with a two-and-one-half-year period of parole ineligibility was

imposed on count seventeen (unlawful possession of a weapon). On count

eighteen (possession of a weapon for an unlawful purpose), the court sentenced

defendant to an extended twenty-year prison term with a ten-year period of

parole eligibility as a second firearms offender, N.J.S.A. 2C:44-3(d).1 The same

sentence was imposed on counts five, six, and nine, except the sentences were

imposed concurrently. On counts seven, eight, ten, and eleven, the court

imposed concurrent five-year terms, with a two-and-one-half-year period of

parole ineligibility. The convictions for counts twelve, thirteen, and sixteen

were merged with count fourteen. The aggregate sentence imposed was life

imprisonment, plus forty years, with a fifty-year period of parole ineligibility.

1 Defendant was previously convicted of a Graves Act offense. A-1471-24 3 We affirmed defendant's convictions on direct appeal. State v. Kahalif,

No. A-0553-92 (App. Div. Jan. 23, 1995) (slip op. at 15-16).2 With respect to

sentencing, we rejected defendant's substantive arguments, including his

contention the court misapplied State v. Yarbough, 100 N.J. 627 (1985), by

applying three consecutive sentences. Id. at 15. We concluded defendant was

eligible to be sentenced to two consecutive life terms and the total of the

consecutive terms imposed for defendant's multiple convictions did not exceed

the sum of the longest term that could have been imposed for the two most

serious offenses. Id. at 15-16.

However, we concluded the sentence reflected in the sentencing transcript

differed from the sentence in the judgment of conviction (JOC). At the

sentencing hearing, the judge stated the sentences for counts fourteen (felony

murder), fifteen (attempted murder), and eighteen (possession of a weapon for

an unlawful purpose) were to be served consecutively. Id. at 13-14. The JOC,

however, stated the sentences on counts fifteen and eighteen were to be served

concurrently with the sentence imposed on count fourteen. Id. at 14. In

addition, both the State and defendant agreed defendant's sentence on count six

was incorrect because he was convicted of third-degree aggravated assault, not

2 Defendant's name is spelled Kahalif in the opinion issued on his direct appeal. A-1471-24 4 second-degree aggravated assault for which he was sentenced. Ibid. We

remanded the matter with instructions to correct the JOC with respect to counts

fifteen and eighteen and resentence defendant on count six. Id. at 17. The

Supreme Court denied defendant's petition for certification. State v. Kahalif,

140 N.J. 327 (1995).

An amended JOC was entered on April 6, 1995. The court corrected the

sentences on counts fifteen and eighteen and resentenced defendant to a ten-year

term with a five-year period of parole ineligibility on count six.

Defendant subsequently filed five petitions for post-conviction relief

(PCR). He filed his first PCR petition on December 26, 1995, alleging he was

denied effective assistance of trial and appellate counsel. The trial court denied

the petition after holding an evidentiary hearing. We affirmed. State v. Khalif,

No. A-2286-97 (App. Div. Oct. 29, 1999). The Supreme Court denied

certification. State v. Khalif, 163 N.J. 76 (2000).

On June 5, 2000, defendant filed his second PCR petition, alleging

ineffective assistance of counsel. The trial court, finding defendant's claims

"wholly frivolous," denied the petition. We affirmed. State v. Khalif, No. A-

1201-00 (App. Div. Oct. 15, 2001). The Supreme Court denied certification.

State v. Khalif, 171 N.J. 44 (2002).

A-1471-24 5 Defendant filed his third PCR petition along with a motion to correct an

illegal sentence on May 21, 2007. He alleged it was unconstitutional for the

trial court to impose extended sentences under N.J.S.A. 2C:44-3(d) on counts

five, six, nine, and eighteen without a jury finding that each element of the

statute had been proven beyond a reasonable doubt. The trial court denied the

petition and motion, concluding the arguments on which defendant relied had

been raised and rejected in his direct appeal and were, in any event, substantively

meritless. We affirmed. State v. Khalif, No. A-0487-07 (App. Div. Apr. 6,

2009). The Supreme Court denied certification. State v. Khalif, 199 N.J. 543

(2009).

On August 20, 2009, defendant filed a fourth PCR petition. The trial court

denied the petition as time barred because it was filed beyond the five-year

period established in R. 3:22-12(a). We affirmed. State v. Khalif, No. A-3362-

09 (App. Div. Feb. 8, 2011). The Supreme Court denied certification. State v.

Khalif, 207 N.J. 35 (2011).

Defendant filed a fifth PCR petition on January 2, 2013. He alleged

ineffective assistance of counsel with respect to his first and second PCR

petitions. The trial court denied defendant's fifth PCR petition because it was

A-1471-24 6 time barred, procedurally barred, and otherwise frivolous. We affirmed. State

v. Khalif, No. A-4158-12 (App. Div. Nov. 13, 2014). 3

Defendant also filed four motions to correct an illegal sentence. The trial

court denied the first on February 25, 2015, because defendant's claims were

previously adjudicated in his direct appeal and raised in prior PCR petitions.

We affirmed. State v. Khalif, No. A-3668-14 (App. Div. June 28, 2017). The

Supreme Court denied certification. State v. Khalif, 232 N.J. 51 (2018).

On April 11, 2018, the trial court denied defendant's second motion to

correct an illegal sentence because the claims he raised were previously

adjudicated. Defendant did not appeal that decision.

On July 19, 2018, the trial court denied defendant's third motion to correct

an illegal sentence because his claims were previously adjudicated and were

substantively meritless. We affirmed. State v. Khalif, No. A-5513-17 (App.

Div. Aug. 26, 2019). The Supreme Court denied certification. State v. Khalif,

241 N.J. 142 (2020).

Defendant filed his fourth motion to correct an illegal sentence on June

10, 2020. He amended his motion on December 28, 2020. In the brief filed in

3 On July 2, 2002, defendant filed a petition for a writ of habeas corpus in the United States District Court. On September 28, 2005, the District Court denied the petition. Khalif v. Hendricks, Civ. No. 02-3193 (D.N.J. Sept. 28, 2005). A-1471-24 7 support of his motion, defendant argued his conviction on count eighteen

(possession of a weapon for an unlawful purpose) should have been merged with

his conviction on count fourteen (felony murder). He argued merger of those

convictions was required because the indictment alleged only one unlawful

purpose in support of count eighteen – killing the victim of the felony murder –

and the jury instruction addressed only that purpose. Thus, defendant argued,

the court was required to merge the conviction on count eighteen into the felony

murder conviction, the greater crime that was the alleged unlawful purpose for

which defendant possessed the weapon. In support of his claim, defendant's

brief cited State v. Williams, 213 N.J. Super. 30 (App. Div. 1986).4

On April 1, 2022, the court issued a written decision denying defendant's

fourth motion. The court found the motion was deficient because the moving

papers did not include our 1995 opinion on defendant's direct appeal, the

transcript of the resentencing, and the amended JOC.5 In addition, the court

concluded the validity of defendant's sentence had been affirmed and reaffirmed

4 Following oral argument before us, we granted the State's motion to supplement the record with the brief defendant filed on June 10, 2020 in support of his fourth motion to correct an illegal sentence. 5 In 2024, a judiciary employee certified the audio tape and transcript of the April 6, 1995 resentencing were destroyed pursuant to a records retention schedule. A-1471-24 8 repeatedly over a period of twenty-seven years. An April 1, 2022 order

memorialized the court's decision.

Defendant subsequently moved for reconsideration of the April 1, 2022

order. In an August 3, 2022 written decision, the court denied defendant's

motion for reconsideration, noting the motion record remained incomplete. We

affirmed. State v. Khalif, No. A-0854-22 (App. Div. Feb. 29, 2024). The

Supreme Court denied certification. State v. Khalif, 260 N.J. 352 (2025).

On July 15, 2024, defendant filed his fifth and present motion to correct

an illegal sentence. He argued, among other things, the trial court erred when it

did not merge the conviction on count eighteen into the conviction on count

fourteen as required by Williams.

On December 6, 2024, the court issued a written decision and order

denying defendant's fifth motion. It held:

As the Appellate Division states in their February 29, 2024, opinion, the validity of your sentence was raised in your direct appeal, repeated in a series of PCR petitions, and reiterated in a subsequent series of motions to correct an illegal sentence. The substantive challenges to your sentence were rejected by every court to adjudicate them since the matter was remanded for resentencing in 1995.

Accordingly, since it has been repeatedly decided by the court that you received a fair and lawful sentence . . . your motion is DENIED.

A-1471-24 9 This appeal followed.

Defendant raises the following arguments.

POINT I.

DEFENDANT WAS ENTITLED "RETROACTIVELY," TO ["]YARBOUGH, GUIDELINES" AT HIS INITIAL SENTENCING IN 1992; ALONG WITH THE (STATEMENT OF REASONS) PURSUANT TO R. 3:21-4(g) IN VIOLATION OF HIS DUE PROCESS. (NOT RAISED BELOW).

POINT II.

[THE COURT] ERRONEOUSLY DENIED DEFENDANT'S MOTION "ON THE PAPERS" CITING "REPEATED CLAIMS IN PRIOR APPEALS," WHEN IN FACT, PRIOR MOTION WAS DENIED PURSUANT TO: R. 3:21-10(c) AND R. 4:49-2, NOT R. 3:22-5. (NOT RAISED BELOW).

II.

We review the legality of a sentence de novo, "affording no special

deference to the court['s] interpretation of the relevant statutes." State v. Nance,

228 N.J. 378, 393 (2017). A court may correct an illegal sentence "at any time

before it is completed." State v. Murray, 162 N.J. 240, 247 (2000); R. 3:21-

10(b)(5). "If a defendant's sentence is illegal, a reviewing court must remand

for resentencing." State v. Steingraber, 465 N.J. Super. 322, 328 (App. Div.

2020) (citing State v. Romero, 191 N.J. 59, 80-81 (2007)). "There are two

A-1471-24 10 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).

"[M]erger implicates a defendant's substantive constitutional rights."

State v. Cole, 120 N.J. 321, 326 (1990). Thus, "[t]he failure to merge

convictions results in an illegal sentence for which there is no procedural time

limit for correction." Romero, 191 N.J. at 80. The doctrine of merger prevents

a defendant from being punished more than once for a single wrongdoing, see

N.J.S.A. 2C:1-8, and is "based on the concept that 'an accused [who] committed

only one offense . . . cannot be punished as if for two.'" State v. Tate, 216 N.J.

300, 302 (2013) (alteration in original) (quoting State v. Davis, 68 N.J. 69, 77

(1975)).

The motion court denied defendant's fifth motion, finding his illegal

sentence claims had been addressed in his direct appeal, subsequent PCR

petitions, and motions to correct an illegal sentence. Rule 3:22-5 mandates that:

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.

A-1471-24 11 We agree with the motion court's conclusion defendant previously raised

and the courts previously decided, in either his direct appeal, PCR petitions, or

prior illegal sentence motions, the claims he raised in his fifth illegal sentence

motion, with one exception. The motion court, therefore, did not err when it

denied defendant's motion to the extent it relied on claims previously decided in

the many judicial applications defendant filed challenging his convictions and

sentences.6

The exception is the distinct issue defendant raised for the first time in his

fourth motion to correct an illegal sentence: whether the trial court erred when

it did not merge his conviction on count eighteen with his conviction on count

fourteen based on the holding in Williams.

As we explained in Williams:

To avoid merger of possession of a weapon for an unlawful purpose, four factors must be present: (1) the defendant must have been charged in the indictment with possession of the weapon with a broader unlawful

6 We acknowledge "Rule 3:22-5's bar to review of a prior claim litigated on the merits 'is not an inflexible command.'" State v. Nash, 212 N.J. 518, 547 (2013) (quoting State v. Franklin, 184 N.J. 516, 528 (2005)). The preclusion stipulation of Rule 3:22-5 can be relaxed so that important constitutional issues can be decided on the merits. See State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970). We see no basis in the record on which to conclude the numerous issues previously raised by defendant and decided by the courts warrant relaxation of Rule 3:22-5 to permit those claims to be raised again in his fifth motion to correct an illegal sentence. A-1471-24 12 purpose, either generally or specifically, than using the weapon to kill or assault the victim of the greater offense, (2) the evidence must support a finding that the defendant had a broader unlawful purpose, (3) the judge must have instructed the jury of the difference between possession with the specific unlawful purpose of using the weapon against the victim of the greater offense and a broader unlawful purpose and (4) the verdict must express the jury's conclusion that the defendant had a broader unlawful purpose.

[Williams, 213 N.J. Super. at 36.]

See also State v Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989) ("[A] jury

instruction on a charge of gun possession for unlawful purpose must include an

identification of such unlawful purposes as may be suggested by the evidence

and an instruction that the jury may not convict based on their own notion of the

unlawfulness of some other undescribed purpose"); and State v. Diaz, 144 N.J.

628, 639 (1996) (explaining that, in the absence of a proper Jenkins instruction,

a conviction for possession of a weapon for an unlawful purpose cannot be

assumed to be for a broader unlawful purpose than the purpose charged in the

indictment).

Contrary to the present motion court's conclusion, the court that decided

defendant's fourth motion to correct an illegal sentence did not consider his

Williams argument. The court denied defendant's fourth motion based on

defendant's failure to submit the complete record necessary to decide the motion.

A-1471-24 13 Although the court deciding the fourth motion made a cursory statement

defendant's substantive claims had been previously raised and decided in his

prior judicial applications, nothing in the record before this court suggests

defendant's Williams claims had been raised before he filed the fourth motion

to correct an illegal sentence.

Defendant's fifth motion to correct an illegal sentence, which gave rise to

this appeal, also included his Williams claim. The court, however, denied the

fifth motion based on its conclusion defendant's Williams claim was raised and

decided in his prior judicial applications. The record does not support the court's

conclusion. The only evidence in the record suggests defendant raised his

Williams claim for the first time in his fourth motion. As explained above, the

court denied defendant's fourth motion without considering his Williams claim.

Defendant's Williams claim, therefore, has never been decided by a court. Thus,

the present court erred when it denied defendant's fifth motion without deciding

his Williams claim.

We therefore vacate the December 6, 2024 order to the extent it denied

defendant's fifth motion to correct an illegal sentence without deciding his claim

Williams required the trial court to merge his conviction on count eighteen with

A-1471-24 14 his conviction on count fourteen. We affirm the December 6, 2024 order in all

other respects.

We remand the matter for the limited purpose of permitting the motion

court to decide defendant's fifth motion to correct an illegal sentence based on

his claim Williams required the merger of his conviction on count eighteen into

his conviction on count fourteen. On remand, the parties shall provide their

appellate submissions to the court. We leave to the court's sound discretion

whether to permit further briefing and argument. We offer no view on the merits

of that claim or whether, as suggested by the State at oral argument, the holding

in Williams does not apply because defendant received an extended sentence on

count eighteen.

The December 6, 2024 order is affirmed in part and vacated in part, and

the matter is remanded to the Law Division for further proceedings consistent

with this opinion. We do not retain jurisdiction.

A-1471-24 15