State of New Jersey v. William Menter

NOT FOR PUBLICATION WITHOUT THE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-0297-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM MENTER,

Defendant-Appellant.

__________________________

Submitted October 9, 2024 – Decided October 23, 2024

Before Judges Gooden Brown and Chase.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Indictment No. 94-10-1390.

Jennifer Nicole Sellitti, Public Defender, attorney for

appellant (Frank M. Gennaro, Designated Counsel, on

the brief).

Esther Suarez, Hudson County Prosecutor, attorney for

respondent (Stephanie D. Elson, Assistant Prosecutor,

on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant William Menter appeals from the July 19, 2022 order denying

his motion to correct an illegal sentence pursuant to Rule 3:21-10(b)(4) and (5).

We affirm.

I.

The application to correct an illegal sentence followed a series of filings

by defendant through the years challenging his conviction. We briefly discuss

that history as well as the salient facts to provide context for the motion

underlying this appeal.

In July 1994, defendant murdered his ex-girlfriend's grandmother, mother

and seven-year-old cousin by slashing their necks with a box cutter. A fourth

family member, a twelve-year-old cousin, was also slashed and severely

wounded. One of the victims was found with her shorts and underwear around

her ankles. Subsequent forensic test revealed no evidence indicative of a

completed sexual assault. Responding officers found two Styrofoam plates at

the crime scene. The following message was written on one plate: "Tecia, never

f**k with me in life." The other plate read: "[y]ou may have cracked my world,

but I devastated yours, go to hell, I'll be waiting for you."

Defendant was subsequently charged, indicted, and entered an initial plea

of not guilty. At arraignment, the State provided defendant with a notice of

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aggravating factors intended to support a sentence of death for the three

murders.

After pre-trial motions, defendant entered pleas of guilty for three counts

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

attempted murder, N.J.S.A. 2C:11-3; one count of second-degree aggravated

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

N.J.S.A. 2C:12-1(b)(2); one count of third-degree possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-4(d); and one count of fourth-degree

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

In exchange for defendant's plea, the State agreed to withdraw the

aggravating factors and not seek the death penalty. The State further agreed to

recommend a life sentence, with thirty-years of parole ineligibility, be imposed

on defendant for each murder count. Additionally, the State agreed to

recommend that a sentence of twenty-years with ten-years of parole ineligibility

be imposed on defendant for the attempted murder count. The State reserved

the right to recommend at sentencing the sentence imposed for each murder

count and the attempted murder count run consecutively to each other. Lastly,

the State agreed to dismiss the remaining counts of the indictment.

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In April 1996, defendant was sentenced on the first murder count to state

prison for a term of life imprisonment with thirty-years of parole ineligibility;

on the second murder count to a consecutive term of life imprisonment with

thirty-years of parole ineligibility; and on the third murder count to a

consecutive term of life imprisonment with thirty-years of parole ineligibility.

Additionally, a term of twenty-years with ten years of parole ineligibility was

imposed on the attempted murder count consecutive to the murder sentences. A

concurrent term of five years was imposed on the possession of a weapon for an

unlawful purpose count and a concurrent term of eighteen months was imposed

on the unlawful possession of a weapon count. The remaining counts o f the

indictment were either dismissed or merged. The aggregate sentence imposed

on defendant was three life terms plus twenty years with one hundred years of

parole ineligibility. He was also ordered to pay a Violent Crimes Compensation

Board ("VCCB") penalty.

Defendant filed a timely notice of appeal limited to sentencing issues. The

matter was listed on our excessive sentence oral argument ("ESOA") calendar

where we heard argument and held the guidelines for imposing consecutive

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sentences under State v. Louis 1 and State v. Yarbough 2 as amended by N.J.S.A.

2C:44-5a were not correctly applied. State v. Menter, No. A-6794-97 (App.

Div. July 21, 1999). Therefore, we ordered "[t]he matter is remanded for

reconsideration of that issue, and for reconsideration of the VCCB penalty."

In November 1999, the trial court conducted a hearing on the remand. At

the resentencing, defense counsel began by explaining to the judge that, "I will

be candid with the court, as I have been with my client." He then continued,

"the Appellate Division is addressing primarily what they see as a procedural

default and not – and the court— in the court is not addressing each specific

consecutive sentence." Defense counsel then contended that even though there

were multiple victims, that because it was only one offense that occurred close

in time, the court should give only one consecutive sentence. Defendant was

neither addressed by the court, nor was he invited to exercise a right of

allocution. The State argued for the same sentence to be imposed. Both sides

agreed to the reduction of the VCCB penalty.

After acknowledging the mistake in the VCCB penalty, the trial judge

reduced the VCCB penalty to $2,000. The court explained that on remand, it

1

State v. Louis, 117 N.J. 250 (1989).

2

State v. Yarbough, 100 N.J. 627 (1985).

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need only conduct a proper Yarbough analysis and determine whether

defendant's sentences should run consecutively or concurrently. The trial court

then conducted such Yarbough analysis concluding that there was no

justification for changing the original sentence.

There was no re-weighing of the aggravating and mitigating factors as the

length of the individual sentences was not in question. The court reimposed

defendant's initial sentence and entered a new judgment of conviction.

Defendant's public defender filed a second notice of appeal on his behalf in

March of 2000.3 Defendant withdrew that appeal on November 27, 2000.

In 2010, defendant filed a petition for post-conviction relief ("PCR")

which was denied. Defendant appealed and we affirmed the denial of the PCR.

State v. Menter, A-2627-l0Tl (App. Div. Sept. 12, 2012). Defendant's petition

for certification was then denied. State v. Menter, 213 N.J. 289 (2013).

Defendant next filed a petition for Writ of Habeas Corpus which was dismissed

as untimely. Menter v. Warren, 2014 U.S. Dist. LEXIS 61628 (D.N.J. May 2,

2014). Defendant then filed a Fed. R. Civ. P. 60(b) motion, seeking to reopen

3

As part of this appeal, we were provided with the transcript from the

resentencing hearing which was provided to the parties on April 10, 2000.

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his 2014 Habeas Petition, which was also denied. Menter v. Warren, 2018 U.S.

Dist. LEXIS 17589 (D.N. J. Feb. 1, 2018).

In 2022, defendant filed a motion to vacate or correct an illegal sentence,

which is the basis for this appeal. Defendant contended that during his

resentence, the court again misapplied the Yarbough factors, his counsel was

ineffective, he was denied his due process rights to appeal his resentence and be

present during the resentence, and the state forged his notice and withdrawal of

appeal. After hearing oral argument, the motion judge wrote an eleven-page

decision denying the appeal.

The motion judge first found defendant's claim that he neither appealed

nor withdrew his appeal to be without merit. She held, pursuant to N.J.R.E.

1003, the State established the admissibility of the copies of the appeal and

withdrawal. Her decision was also based on the certification from two of the

secretaries in the office of the public defender that they had served all parties,

as well as the defendant not challenging the signatures by the assistant public

defender who filed and withdrew the appeal.

Moreover, the motion court held that defendant's sentence was not

"illegal" as it complied with the code of criminal justice and the sentencing judge

considered and conducted a thorough Yarbough analysis. Although the motion

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was not a PCR, the motion judge addressed defendant's claim of ineffective

assistance by his prior attorneys for not notifying him of the correct prior ESOA

outcome, resentence, and right to appeal the resentence. She held that even

though these claims were without merit, he could not demonstrate prejudice

under the second Strickland 4 prong and that his allegations were "bald

assertions." 5 Lastly, the motion court determined defendant had not presented a

prima facie case of ineffective assistance of counsel and that the re-sentencing

transcript did not prove that defendant was sentenced in absentia.

Defendant's appeal was argued before an ESOA panel of this court on

October 31, 2023. On that date, we ordered the transfer to the plenary calendar.

Defendant raises the following arguments on this appeal:

POINT I

BECAUSE HE WAS DENIED HIS

CONSTITUTIONAL RIGHT TO BE PRESENT AT

HIS RESENTENCING, DEFENDANT MUST BE

GRANTED A NEW SENTENCING HEARING.

Defendant's pro se supplemental brief presents the following additional

arguments for our consideration:

POINT I

4

Strickland v. Washington, 466 U.S. 668 (1984).

5

State v. Cummings, 321 N.J. Super 154, 170 (1999).

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THE COURT ERRED IN DENYING APPELLANT'S MOTION

TO CORRECT OR VACATE HIS ILLEGAL SENTENCE,

THEREFORE, THE MATTER MUST BE REMANDED.

POINT II

APPELLANT'S SIXTH AMENDMENT RIGHT TO DUE

PROCESS WAS VIOLATED WHEN ASSIGNED COUNSEL

ABANDONED HIM WITHOUT REASON AND LEFT HIM TO

DEFEND HIMSELF. IN THE ALTERNATIVE, THE COURT

SHOULD HAVE REASSIGNED ANOTHER ATTORNEY TO

REPRESENT DEFENDANT.

POINT III

THE TRIAL JUDGE ERRED IN FINDING THAT THE

SIGNATURE ON THE NOTICE OF APPEAL AND

WITHDRAWAL WERE DEFENDANT'S WHILE STATING AT

THE SAME TIME THAT DEFENDANT'S ATTORNEY SIGNED

DEFENDANT'S NAME, THEREFORE THE MATTER MUST BE

REMANDED.

POINT IV

DEFENDANT'S DUE PROCESS RIGHT TO BE PRESENT AT

THE RESENTENCING HEARING (ON REMAND FROM THE

APPELLATE DIVISION) WAS CLEARLY VIOLATED, THUS

REQUIRING RELIEF (U.S. Const. Amend. VI; XIV; N.J. Const.

Art. I, Par. 10).

POINT V

DEFENDANT'S DUE PROCESS RIGHT TO BE ABLE TO

REAPPEAL ANY NEW/AMENDED SENTENCE STEMMING

FROM THE APPELLATE REMAND WAS VIOLATED, THUS

REQUIRING RELIEF.

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POINT VI

DEFENDANT'S SIXTH AMENDMENT RIGHT TO THE

EFFECTIVE ASSISTANCE OF COUNSEL WERE

REPEATEDLY VIOLATED BY THEM LYING AND

MISLEADING HIM INTO BELIEVING THAT THE APPELLATE

COURT HAD DENIED HIS APPEAL ON DIRECT.

ADDITIONALLY, DEFENDANT'S DUE PROCESS RIGHTS

WERE VIOLATED BY THE COURTS BY THEM

ACQUIESCING.

POINT VII

THE COURT FAILED TO CONSIDER MITIGATING

EVIDENCE THAT WAS CLEARLY AVAILABLE AND

PRESENTED TO THE COURT.

II.

Sentencing decisions are discretionary in nature. State v. Cuff, 239 N.J.

321, 347 (2019). Therefore, we review a sentence for an abuse of discretion.

State v. Jones, 232 N.J. 308, 318 (2018). We defer to the sentencing court's

factual findings and should not "second-guess" them. State v. Case, 220 N.J.

49, 65 (2014). We "must affirm the sentence of a trial court unless: (1) the

sentencing guidelines were violated; (2) the findings of aggravating and

mitigating factors were not 'based upon competent credible evidence in the

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]

the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration

in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). "To facilitate

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meaningful appellate review, trial judges must explain how they arrived at a

particular sentence." Case, 220 N.J. at 65.

"[T]rial judges have discretion to decide if sentences should run

concurrently or consecutively." State v. Miller, 205 N.J. 109, 128 (2011); see

N.J.S.A. 2C:44-5(a). Judges are permitted to impose consecutive sentences after

considering the Yarbough6 factors, which are as follows:

(1) there can be no free crimes in a system for which

the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or

concurrent sentence should be separately stated in the

sentencing decision;

(3) some reasons to be considered by the sentencing

court should include facts relating to the crimes,

including whether or not:

(a) the crimes and their objectives were

predominantly independent of each other;

(b) the crimes involved separate acts of violence

or threats of violence;

(c) the crimes were committed at different times

or separate places, rather than being committed

so closely in time and place as to indicate a single

period of aberrant behavior;

6

The overall limitation on consecutive sentences was superseded by statute

when N.J.S.A. 2C:44-5(a) was amended to read "[t]here shall be no overall outer

limit on the cumulation of consecutive sentences for multiple offenses."

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(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to

be imposed are numerous;

(4) there should be no double counting of aggravating

factors;

(5) successive terms for the same offense should not

ordinarily be equal to the punishment for the first

offense; and

(6) there should be an overall outer limit on the

cumulation of consecutive sentences for multiple

offenses not to exceed the sum of the longest terms

(including an extended term, if eligible) that could be

imposed for the two most serious offenses.

[100 N.J. at 643-44.]

The Yarbough factors are applied qualitatively, not quantitatively. State

v. Carey, 168 N.J. 413, 427 (2001). A court may impose consecutive sentences

even though a majority of the Yarbough factors support concurrent sentences.

Id. at 427-28; see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div. 2000)

(explaining even when "offenses [are] connected by a 'unity of specific purpose,'

. . . somewhat interdependent of one another, and were committed within a short

period of time of one another," concurrent sentences need not be imposed)

(citations omitted). "When a sentencing court properly evaluates the Yarbough

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factors in light of the record, the court's decision will not normally be disturbed

on appeal." Miller, 205 N.J. at 129.

Our Supreme Court has noted "remands for resentencing 'cover a range of

proceedings, from vacated sentences which required sentencing anew to mere

corrections of technical errors.'" State v. Robinson, 217 N.J. 594, 610-11 (2014)

(emphasis added) (quoting State v. Randolph, 210 N.J. 330, 350 (2012)). When

a remand order is "not only for the reconsideration and justification of the

consecutive nature of the sentences, but also for the same reconsideration and

justification for the imposition of maximum terms, [it] necessarily requires a

new analysis of the aggravating and mitigating factors." Randolph, 210 N.J. at

353-54. However, if the remand order "specifies a different and more limited

resentencing proceeding" or "the remand order is limited in scope[,]" the trial

court need not engage in such an involved hearing. Id. at 350, 354. Indeed, the

remand proceedings may be "circumscribed by the remanding appellate body's

delineation that a limited proceeding is sufficient." Id. at 352. See also State v.

Bellamy, 468 N.J. Super. 29, 39-40 (App. Div. 2021) ("When [this court]

comment[s] on errors . . . that statement is binding.").

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A.

In his counseled and supplemental brief, defendant contends that his due

process rights were violated because he was not present at the resentence. First,

there is no proof that defendant was not present at the resentence. His counsel

recounted to the court his conversation with defendant about the procedural error

in the sentence and then went on to argue for only one consecutive sentence.

Second, if defendant did not know about the resentence, he would not have

known to appeal and then withdraw his appeal. Moreover, the motion court

correctly held that defendant's claim that he neither appealed nor withdrew his

appeal of the resentence to be wholly without merit based on the certifications

attached to those documents by various members of the public defender's office.

Even if defendant was not present at the remand, due to its nature, his due

process rights were not violated. When we remanded the sentence, we did so

because "the guidelines for imposing consecutive sentences were not correctly

applied." Menter, A-6974-97 slip op. at 1. It is clear by us stating, "[t]he matter

is remanded for reconsideration of that issue," that we did not direct the trial

judge to reconsider the length of the sentence or re-evaluate the aggravating and

mitigating factors and commit to an entirely new sentencing procedure. Rather,

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the remand was limited in nature, only for the correct Yarbough analysis to be

applied.

III.

We reject defendant's contention that he was not afforded the right of

allocution before sentencing. In State v. Jones, the Court explained a

deprivation of the right to allocution pursuant to Rule 3:21-4(b) is a structural

error, requiring remand. 232 N.J. 308, 318-19 (2018). Rule 3:21-4(b) provides,

in pertinent part, that "[b]efore imposing sentence the court shall address the

defendant personally and ask the defendant if he or she wishes to make a

statement in his or her own behalf and to present any information in mitigation

of punishment." Defendant was afforded the right of allocution at his initial

sentencing hearing. Here, the remand was limited in scope and solely for the

correct application of the Yarbough factors. As such, defendant was not entitled

to a second allocution.

The other arguments raised by defendant also do not warrant resentence.

The record belies that defendant was denied his due process rights to appeal his

resentence or that the State forged his notice of appeal and withdrawal.

Moreover, as this appeal was not a PCR, the allegations of ineffective assistance

of counsel are not properly before this court.

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To the extent we have not addressed defendant's remaining arguments, it

is because they lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

Affirmed.

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