                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-0005-18T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

IRONE WATFORD, a/k/a TYRONE
WATFORD, and IRONE WETFORD,

     Defendant-Appellant.
_______________________________

                   Submitted September 9, 2019 – Decided September 16, 2019

                   Before Judges Geiger and Natali.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Hudson County, Indictment No. 94-06-
                   0904.

                   Irone Watford, appellant pro se.

                   Esther Suarez, Hudson County Prosecutor, attorney
                   for respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Irone Watford appeals from a Criminal Part order denying his

motion to correct an illegal sentence. We affirm.

      We briefly recount the lengthy procedural history of this case. Arising

out of a November 4, 1993 incident in Jersey City, defendant was charged in a

ten-count indictment with armed robbery, N.J.S.A. 2C:15-1; robbery, N.J.S.A.

2C:15-1; carjacking, N.J.S.A. 2C:15-2; kidnapping, 2C:13-1(b); aggravated

sexual assault, N.J.S.A. 2C:14-2(a)(3); aggravated sexual assault, N.J.S.A.

2C:14-2(a)(4); sexual assault, N.J.S.A. 2C:14-2(c)(1); criminal sexual contact,

N.J.S.A. 2C:14-3(b); possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(d); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).

Defendant was convicted of all ten counts following a jury trial in 1997.

      Defendant was over the age of twenty-one when he committed the crimes

in 1993. He had previously been convicted of second-degree robbery in 1988

and third-degree distribution of a controlled dangerous substance (CDS) within

1000 feet of school property in 1991. He was over the age of eighteen when he

committed the prior crimes. The State moved to sentence defendant to an

extended term as a persistent offender pursuant to N.J.S.A. 2C:43-7 and N.J.S.A.

2C:44-3(a). The trial court granted the motion. The court found defendant met




                                                                        A-0005-18T3
                                       2
the statutory definition of a persistent offender and was eligible for discretionary

extended sentencing.

      On September 22, 1997, after appropriate mergers of several counts,

defendant was sentenced to an aggregate term of life plus eighty years

imprisonment with a sixty-year parole disqualifier. 1 He was also sentenced to

community supervision for life.

      We affirmed defendant's conviction and sentence on direct appeal. State

v. Watford, No. A-1544-97 (App. Div. Mar. 31, 2000). The Supreme Court

denied certification. State v. Watford, 165 N.J. 487 (2000).

      In 2000, defendant filed his first petition for post-conviction relief (PCR),

which was denied in January 2002. We affirmed the denial. State v. Watford,

No. A-3753-01 (App. Div. June 16, 2003).             The Supreme Court denied

certification. State v. Watford, 178 N.J. 34 (2003).




1
   For the first-degree aggravated sexual assault, defendant was sentenced to
life imprisonment subject to parole ineligibility for twenty-five years. For the
first-degree kidnapping, defendant was sentenced to a term of thirty years
subject to parole ineligibility for fifteen years. For the first-degree carjacking,
defendant was sentenced to a term of thirty years subject to parole ineligibility
for ten years. For first-degree armed robbery, defendant was sentenced to a
term of twenty years subject to parole ineligibility for ten years. The sentences
ran consecutively. Each of the extended sentences were within the ranges set
by N.J.S.A. 2C:43-7.
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                                         3
      In April 2009, defendant filed his second PCR petition, also styled as a

motion to correct an illegal sentence, which was denied in May 2009, and again

in July 2009, without an evidentiary hearing. We affirmed the denial. State v.

Watford, No. A-5737-08 (App. Div. May 5, 2010). The Supreme Court denied

certification. State v. Watford, 205 N.J. 15 (2010).

      In June 2012, defendant filed his third PCR petition. The trial court found

no "good cause" to justify appointment of counsel "because this matter is

procedurally barred under [Rule] 3:22-4" and alleged no "substantial issue of

fact or law," and dismissed the petition. We affirmed the dismissal. State v.

Watford, No. A-2219-12 (App. Div. Feb. 19, 2014). The Supreme Court denied

certification. State v. Watford, 219 N.J. 629 (2014).

      Defendant filed a motion to correct an illegal sentence in September 2015.

We affirmed the denial of the motion on a sentencing calendar pursuant to Rule

2:9-11, substantially for the reasons set forth in the trial court's January 29, 2016

oral decision. State v. Watford, No. A-3561-15 (App. Div. Aug. 2, 2016). The

Supreme Court denied certification. State v. Watford, 229 N.J. 8 (2017).

      Defendant did not confine his attempts to overturn his conviction and

sentence to proceedings in State court. He also filed two habeas corpus petitions

in the United States District Court for the District of New Jersey. Both habeas


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                                         4
petitions were denied. Watford v. Bartkowski, Civ. Action No. 11-0319 (SDW)

(D.N.J. July 14, 2011), certificate of appealability denied, C.A. No. 11–3082 (3d

Cir. Oct. 3, 2011); Watford v. Hendricks, Civ. Action No. 04-1388 (SDW)

(D.N.J. Apr. 27, 2007), certificate of appealability denied, C.A. No. 07–3203

(3d Cir. Mar. 10, 2008). The United States Supreme Court denied certiorari.

Watford v. Warren, 566 U.S. 909 (2012); Watford v. Ricci, 556 U.S. 1171

(2009).

      On April 6, 2017, defendant filed a second motion to correct an illegal

sentence based on a challenge to the constitutionality of the persistent offender

sentencing statute, N.J.S.A. 2C:44-3, which was denied on June 15, 2018.

Defendant claimed the statute was unconstitutionally vague and deprived him of

his right to due process and equal protection of the laws. This appeal followed.

      Defendant argues:

            THE TRIAL COURT ERRED BY DENYING
            APPELLANT'S MOTION CHALLENGING THE
            CONSTITUTIONALITY OF SUBSECTION (a) OF
            N.J.S.A. 2C:44-3 SINCE BOTH (N.J.S.A. 2C:43-7
            AND 2C:44-3(a)) ARE CLEARLY
            UNCONSTITUTIONAL ON ITS FACE AND AS
            APPLIED THE STATUTES VIOLATES THE
            CONSTITUTIONAL DUE PROCESS AND EQUAL
            PROTECTION RIGHTS OF A DEFENDANT.




                                                                         A-0005-18T3
                                       5
      Whether defendant's sentence is illegal or unconstitutional is "an issue of

law subject to de novo review." State v. Drake, 444 N.J. Super. 265, 271 (App.

Div. 2016) (citing State v. Pomianek, 221 N.J. 66, 80 (2015)).

      Although defendant's motion was filed more than nineteen years after he

was sentenced, it is not time barred. The law imposes no time limit on a

challenge to an illegal or unconstitutional sentence. State v. Acevedo, 205 N.J.

40, 47 n.4 (2011); R. 3:21-10(b)(5); R. 3:22-12. "A motion may be filed and an

order may be entered at any time" to correct an illegal sentence. R. 3:21-

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

      We first consider whether N.J.S.A. 2C:44-3(a) is facially vague. Criminal

statutes that are impermissibly vague are unconstitutional.

            Clear and comprehensible legislation is a fundamental
            prerequisite of due process of law, especially where
            criminal responsibility is involved. Vague laws are
            unconstitutional . . . because unclear or
            incomprehensible legislation places both citizens and
            law enforcement officials in an untenable position.
            Vague laws deprive citizens of adequate notice of
            proscribed conduct, and fail to provide officials with
            guidelines sufficient to prevent arbitrary and erratic
            enforcement.

            [State v. Afanador, 134 N.J. 162, 170 (1993)
            (emphasis added) (quoting Town Tobacconist v.
            Kimmelman, 94 N.J. 85, 118 (1983)).]



                                                                        A-0005-18T3
                                       6
      "A law is void as a matter of due process if it is so vague that persons 'of

common intelligence must necessarily guess at it meaning and differ as to its

application.'" Town Tobacconist, 94 N.J. at 118 (quoting Connally v. Gen.

Constr. Co., 269 U.S. 385, 391 (1926)).              Thus, a criminal statute is

unconstitutionally vague and violates due process if it fails "to provide notice

and warning to an individual that his or her conduct could subject that individual

to criminal or quasi-criminal prosecution." State v. Hoffman, 149 N.J. 564, 581

(1997) (citing Screws v. United States, 325 U.S. 91, 101-02 (1945)).

      Pursuant to N.J.S.A. 2C:44-3, "[t]he court may, upon application of the

prosecuting attorney, sentence a person who has been convicted of a crime of

the first, second or third degree to an extended term" if the person is found to be

a persistent offender as defined by N.J.S.A. 2C:44-3(a). The statute provides

the following definition of a persistent offender:

            A persistent offender is a person who at the time of
            the commission of the crime is 21 years of age or
            over, who has been previously convicted on at least
            two separate occasions of two crimes, committed at
            different times, when he was at least 18 years of age,
            if the latest in time of these crimes or the date of the
            defendant's last release from confinement, whichever
            is later, is within 10 years of the date of the crime for
            which the defendant is being sentenced.

            [N.J.S.A. 2C:44-3(a).]


                                                                          A-0005-18T3
                                        7
The trial court correctly concluded defendant satisfied those criteria and was

eligible for sentencing to extended terms. The sentencing ranges fo r extended

terms are set forth in N.J.S.A. 2C:43-7.

      We find no merit in defendant's argument that N.J.S.A. 2C:44-3(a) is

facially vague. The statute is neither unclear nor incomprehensible. The statute

clearly and unambiguously defines the term "persistent offender." It provides

citizens with adequate notice and warning that his or her conduct could subject

them to the extended sentencing implications for persistent offenders. Persons

of common intelligence would not guess at its meaning or differ as to its

application.   The statute also provides officials with guidelines to prevent

arbitrary and erratic enforcement.         Put simply, the statute is not

unconstitutionally vague.

      We next address defendant's claim that only violent crimes should be

considered by a sentencing court when evaluating a defendant's persistent

offender status. We disagree. Nothing in the plain language of the statute or its

legislative history supports that claim. On the contrary, persistent offender

status can be based on convictions of any crimes of the first, second, or third

degree if they occurred within the statute's time and age limitations. Had the




                                                                         A-0005-18T3
                                       8
Legislature intended to limit sentencing as a persistent offender to only violent

criminals it would have so stated. It did not. 2

      Indeed, the original proposed version of the Criminal Code required the

court to find "an extended term is necessary for the protection of the public,"

"[t]he reference to 'protection of the public' was not included in the final version

of the statute." State v. Pierce, 188 N.J. 155, 164 (2006). The Court overturned

the requirement that the sentencing court find the defendant's commitment for a

discretionary extended term is necessary for the protection of the public imposed

by State v. Dunbar, 108 N.J. 80, 90-91 (1987) and reaffirmed by State v.

Pennington, 154 N.J. 344 (1998). Pierce, 188 N.J. at 158, 169-70.

      Defendant misconstrues the two-step process undertaken by a sentencing

court when considering an application for an extended sentence. The sentencing

court must first undertake an objective examination of the defendant's prior

record of conviction and age at the time of those convictions, to determine

whether it renders him or her statutorily eligible for extended-term sentencing.




2
  In contrast, the so-called Three Strikes Law, N.J.S.A. 2C:43-7.1(a), requires
two predicate convictions for any of the following violent offenses: murder,
aggravated manslaughter, first-degree kidnapping, armed or violent sexual
assault, robbery, or carjacking.


                                                                           A-0005-18T3
                                         9
Id. at 162, 168-69.3 Analysis of the nature of a defendant's prior convictions,

including whether they were for violent offenses, "must be regarded as, separate

and distinct from the court's determination" of statutory eligibility for an

extended sentence, and is undertaken after eligibility is determined. Id. at 168.

Determination of eligibility for extended term sentencing does not involve

assessing whether the defendant presents a risk to the public because his prior

crimes were for violent offenses. "Consideration of the protection of the public

takes place during [the second] phase of the sentencing process," when the court

assesses "the aggravating and mitigating factors, including the deterrent need to

protect the public," and determines the appropriate term within the extended

term range. Ibid.

      In sum, N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3(a) are not impermissibly

vague or unconstitutional as applied. Defendant was not deprived of his right

to due process or equal protection of the laws under either the United States

Constitution or the New Jersey Constitution.




3
  Similarly, determination of whether a defendant meets the requirements for a
mandatory enhanced-term sentence is also "based on an objective
determination—the existence of prior convictions." State v. Thomas, 188 N.J.
137, 151 (2006).
                                                                        A-0005-18T3
                                      10
      To the extent we have not addressed defendant's remaining arguments

they are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

      Affirmed.




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                                      11
