State of New Jersey v. Tracy Tisdol

• Court: New Jersey Superior Court Appellate Division
• Decided: December 30, 2024
• Docket: A-0174-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0174-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRACY TISDOL, a/k/a POETIC,

Defendant-Appellant. _________________________

Submitted December 11, 2024 – Decided December 30, 2024

Before Judges Rose and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 95-11-1254.

Tracy Tisdol, appellant pro se.

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Leandra L. Cilindrello, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Tracy Tisdol appeals from the June 27, 2023 order of the Law

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

I.

In 1995, defendant conspired with Meshach Greene and Corie Miller to

rob two young women who were sitting in a car with the windows down on a

summer night in Paterson. Miller was armed with a loaded handgun, which

defendant had seen in his possession earlier that day.

The three men surrounded the women and demanded they turn over their

money. When the victims said they did not have any money, Miller cocked the

gun and struck one of the women in the head. The assault caused the weapon to

discharge. The bullet struck the other woman, lacerating several of her internal

organs and lodging in her liver. Defendant and his co-conspirators fled the

scene, leaving the gravely injured victim to bleed to death while her friend

frantically tried to drive her to the hospital.

A jury convicted defendant of first-degree murder, N.J.S.A. 2C:11-

3(a)(1); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); second-degree

conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1; two counts

of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a

A-0174-23 2 weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and third-degree

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

At defendant's 1997 sentencing, the court merged the felony murder

conviction into the murder conviction, for which it sentenced defendant to life

imprisonment with a thirty-year period of parole ineligibility. The conspiracy

conviction was merged into the armed robbery convictions. The court sentenced

defendant to a twenty-year period of incarceration with a ten-year period of

parole ineligibility on each armed robbery conviction, with one sentence

imposed concurrently to the sentence for murder and one imposed consecutively

to the sentence for murder. For the possession of a weapon for an unlawful

purpose, the court sentenced defendant to a ten-year term of imprisonment with

a five-year period of parole ineligibility. Finally, the court sentenced defendant

to a five-year term of imprisonment for the unlawful possession of a weapon

conviction. The court directed that the sentences on the weapons convictions

run concurrently with the murder sentence. In the aggregate, the court sentenced

defendant to a term of life imprisonment, plus twenty years, with a forty-year

period of parole ineligibility.

On direct appeal, defendant argued, among other points, that the trial court

erred when it imposed the maximum sentence for his armed robbery convictions

A-0174-23 3 and directed that the sentence for one armed robbery conviction run

consecutively to his sentence for murder. He also argued that his aggregate

sentence was manifestly excessive. We affirmed defendant's convictions and

sentence. State v. Tisdol, No. A-6056-96 (App. Div. Nov. 12, 1999). The

Supreme Court denied certification. 163 N.J. 396 (2000).

We subsequently affirmed the denial of defendant's first petition for post-

conviction relief (PCR). State v. Tisdol, A-3698-03 (App. Div. Feb. 10, 2005).

The Supreme Court denied certification. 183 N.J. 586 (2005).

Defendant also filed for a writ of habeas corpus in the United States

District Court, which the court denied on September 25, 2006. Tisdol v. Cathel,

No. Civ. A. 05-3823 (JAP) (D.N.J. Sep. 25, 2006). The Third Circuit affirmed,

and the United States Supreme Court denied certiorari. Tisdol v. Milgram, 552

U.S. 1284 (2008).

Defendant subsequently filed his second PCR petition. Among the issues

defendant raised was that his sentence was excessive. The PCR court rejected

the petition as time-barred and substantively meritless. We affirmed. State v.

Tisdol, No. A-1018-09 (App. Div. Oct. 29, 2010). The Supreme Court denied

certification. 205 N.J. 518 (2011).

A-0174-23 4 In 2018, defendant filed a motion in the Law Division to correct an illegal

sentence pursuant to Rule 3:21-10. In an oral opinion, the court denied

defendant's motion, explaining as follows:

I don't think that there's any basis whatsoever for the claim that there was an illegal sentence, which is truly the only legal basis under which this matter could be before the [c]ourt at this stage after appeals have been exhausted, after other issues raised in the two previous PCRs.

....

As I noted, it was a standard murder sentence given, and there was a consecutive term imposed on one of the first[-]degree robberies, that with regard to the surviving victim.

[W]hether . . . that sentence was lawful or excessive was addressed specifically by the Appellate Division in its decision. It was also addressed on the second PCR . . . . Those are fully adjudicated issues ....

So there is nothing whatsoever illegal about the sentence, and . . . that truly ends our inquiry . . . .

We affirmed the court's decision. State v. Tisdol, No. A-3214-18 (App. Div.

Mar. 24, 2021). The Supreme Court denied certification. 248 N.J. 215 (2021).

On April 14, 2023, defendant filed a second motion to correct an illegal

sentence pursuant to Rule 3:21-10. He argued the sentencing court did not

properly apply the holding in State v. Yarbough, 100 N.J. 627, 630 (1985), and

A-0174-23 5 as a result, imposed unwarranted consecutive sentences. In addition, defendant

argued the sentencing court did not consider the overall fairness of his aggregate

sentence or make an explicit statement to that effect, as required by the holding

in State v. Torres, 246 N.J. 246, 273 (2021).

On June 27, 2023, the motion court issued a written decision denying

defendant's motion. The court found that a motion for resentencing must be

filed within sixty days after the date of the judgment of conviction, unless one

of the exceptions set forth in Rule 3:21-10(b) applies. The court also found that

the only exceptions that might conceivably apply to defendant's motion were

3:21-10(b)(4) or (5). Subsection (b)(4) allows a motion for resentencing to be

filed at any time to "chang[e] a sentence as authorized by the Code of Criminal

Justice . . . ." Subsection (b)(5) allows a motion for resentencing to be filed at

any time to "correct[] a sentence not authorized by law including the Code of

Criminal Justice . . . ."

The court found that defendant alleged that his sentence was illegal in his

2018 motion to correct an illegal sentence, which was denied by the Law

Division in 2019. As noted above, we affirmed the order denying defendant's

motion in 2021 and the Supreme Court declined to review our decision. Thus,

A-0174-23 6 the court concluded, defendant was barred from filing a second motion under

subsection (b)(5) raising the same argument that his sentence was illegal.

Because defendant was barred from basing his motion on subsection

(b)(5), the court found that subsection (b)(4) was the only plausible available

avenue for defendant to seek resentencing. The court concluded, however,

"there is nothing [d]efendant provided to this court that persuades it that

[d]efendant should be resentenced" under that provision of the rule. The court

rejected defendant's claim that resentencing was warranted because the

sentencing court erred when it did not explicitly mention every factor set forth

in Yarbough. In addition, the motion court noted defendant's previous claims

that the sentencing court did not correctly apply Yarbough were rejected by the

Law Division and this court.

The motion court also was not persuaded by defendant's argument that the

holding in Torres requires he be resentenced because the sentencing court did

not expressly state that his overall sentence was fair. The court rejected the

argument that Torres applied retroactively. In addition, the court noted that in

our 2019 opinion we affirmed the imposition of consecutive sentences on

defendant based, in part, on the sentencing court's recognition that he

participated in the armed robbery of two victims. Thus, the motion court

A-0174-23 7 concluded, we previously found that the sentencing court made a sufficient

statement regarding the fairness of the consecutive sentences imposed on

defendant as required in Torres.

Finally, the motion court rejected defendant's claim he was entitled to

resentencing to have the court reweigh and rebalance the aggravating and

mitigating factors in the interest of justice. The court found defendant's

challenge to the sentencing court's findings with respect to the aggravating and

mitigating factors was considered and rejected in the adjudication of his second

PCR petition. A June 27, 2023 order memorialized the motion court's decision.

This appeal followed. Defendant makes the following argument.

THE TRIAL COURT ERRED FOR DENYING DEFENDANT[']S ILLEGAL SENTENCE MOTION WITHOUT CONDUCTING AN OVERALL FAIRNESS ASSESSMENT AND A[N] EXPLICIT STATEMENT OF REASONS FOR IMPOSING MAXIMUM CONSECUTIVE SENTENCE[S] FOR ARMED ROBBERY. THEREFORE[,] DEFENDANT[']S MATTER SHOULD BE REMANDED BACK TO THE TRIAL COURT FOR A FULL RESENTENCING HEARING.

A. On remand defendant's consecutive sentence for robbery should be r[u]n concurrent with the murder.

B. Defendant's sentence evidence[s] sentence disparity.

A-0174-23 8 C. On remand the [c]ourt needs to conduct a[n] independent analysis of double counting aggravating factor one.

II.

A motion to correct an illegal sentence may be filed at any time. R. 3:21-

10(b)(5); State v. Schubert, 212 N.J. 295, 309 (2012). An illegal sentence

"exceed[s] the penalties authorized by statute for a specific offense." State v.

Murray, 162 N.J. 240, 246 (2000). "A sentence may also be illegal because it

was not imposed in accordance with law. This category includes sentences that,

although not in excess of the statutory maximum penalty," are not authorized by

statute. Id. at 247. "In addition, a sentence may not be in accordance with law

because it fails to satisfy required presentencing conditions" or "include a

legislatively mandated term of parole ineligibility." Ibid. We review de novo

the trial court's finding that a sentence is legal. Schubert, 212 N.J. at 303-04.

Having reviewed defendant's arguments in light of the record and

applicable legal principles, we conclude they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the

following comments.

We agree with the motion court's conclusion that Torres is not retroactive

and does not entitle defendant to a resentencing hearing. In Torres, issued more

A-0174-23 9 than twenty years after defendant was sentenced, the Court explained its

intention "to underscore" and "promote" the "concepts of uniformity,

predictability, and proportionality" that underlie the sentencing factors it set

forth in Yarbough. 246 N.J. at 252-53. The Court stated,

[w]e reiterate the repeated instruction that a sentencing court's decision whether to impose consecutive sentences should retain focus on "the fairness of the overall sentence." [State v.] Miller, 108 N.J. [112,] 122 [(1987)]; see also State v. Abdullah, 184 N.J. 497, 515 (2005). Toward that end, the sentencing court's explanation of its evaluation of the fairness of the overall sentence is "a necessary feature in any Yarbough analysis." [State v.] Cuff, 239 N.J. [321,] 352 [(2019)].

[Id. at 270.]

The Court in Torres did not announce a new rule. It renewed and

reemphasized the long-established requirement that a sentencing court provide

"an explanation of the overall fairness of [a] consecutive sentence . . . ." Ibid.

Because the Court did not create a new rule of law, retroactivity is not

applicable. State v. Feal, 194 N.J. 293, 307 (2008); State v. Burstein, 85 N.J.

394, 403 (1981) ("[R]etroactivity can arise only where there has been a departure

from existing law."). As the motion court found, defendant has unsuccessfully

challenged the overall fairness of his aggregate sentence multiple times . The

A-0174-23 10 Court's opinion in Torres does not give defendant grounds to relitigate the

fairness of his sentence.

Affirmed.

A-0174-23 11