NOT FOR PUBLICATION WITHOUT THE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-1125-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ADRIAN MILLER, a/k/a
MICHAEL SMITH, and
ADRIAN MALIK MILLER,
Defendant-Appellant.
________________________
Submitted January 25, 2021 – Decided August 11, 2021
Before Judges Messano and Hoffman.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 07-03-
0684.
Adrian Miller, appellant pro se.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Lisa Gochman, of
counsel and on the brief).
PER CURIAM
Defendant Adrian Miller is currently serving an aggregate sentence of
thirty years of incarceration, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. He appeals from the July 19, 2019 Law Division order
denying his motion to correct an illegal sentence. We vacate the order and
remand with instructions to enter an amended judgement of conviction, vacating
defendant's conviction and sentence for second-degree certain persons not to
have weapons.
I.
On March 5, 2008, a jury found defendant guilty of first-degree armed
robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon
for unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); fourth-degree
aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count three);
third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four);
and, in a separate proceeding, second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b)(1) (count six).
We set forth the factual background for defendant's conviction in an
earlier opinion:
[W.P.] was the owner of the Super Discount Store . . .
in Asbury Park. He was working behind the counter on
the evening of August 15, 2006, when a man, later
identified as defendant, walked in at approximately
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6:00 p.m. Defendant picked up a hand phone and gave
[W.P.] a ten dollar bill to pay for it. When [W.P.]
handed defendant his change, defendant pulled a gun
out of his pocket and pointed it at [W.P.], demanding
money. [W.P.] handed some cash to defendant, who
demanded more. Defendant then jumped onto the
cashier counter and attempted to take money from the
cash register. [W.P.] hit defendant's hand, causing
defendant's gun to fall to the floor. A struggle between
[W.P.] and defendant ensued. During this struggle,
defendant grabbed [W.P.]'s neck, and [W.P.] proceeded
to bite defendant's hand. Both men fell to the floor in
front of the counter and the gun went off "two or three
times."
[State v. Miller, No. A-0543-08, (App. Div. Jan. 14,
2010) (slip op. at 2-3.)]
The trial court granted the State's motion for a mandatory extended term,
and on May 16, 2008, sentenced defendant to an aggregate sentence of thirty
years of incarceration, subject to NERA, with an eighty-five percent parole
disqualifier. On count six, the trial court sentenced defendant to a mandatory
extended term of fifteen years incarcerated with a seven-and-a-half-year parole
disqualifier, to be served concurrently to the sentence imposed on count one.
Defendant appealed, and we affirmed. Id. slip op. at 14. Defendant petitioned
for certification, which our Supreme Court denied. State v. Miller, 205 N.J. 79
(2011).
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On March 28, 2012, defendant filed a PCR petition alleging ineffective
assistance of counsel. The trial court denied defendant's petition, defendant
appealed, and we affirmed. State v. Miller, No. A-3048-13 (App. Div. July 8,
2015). Defendant again petitioned for certification, which our Supreme Court
denied. State v. Miller, 223 N.J. 356 (2015).
On June 6, 2019, defendant filed a pro se motion to correct an illegal
sentence. The motion judge treated defendant's motion as a second PCR petition
and dismissed it as untimely under Rule 3:22-12(a)(2). Defendant filed a motion
for reconsideration. In an August 27, 2019 letter, the motion judge's clerk
advised defendant to file an independent motion to correct an illegal sentence.
Defendant appealed.
On appeal, defendant raises the following arguments:
POINT I
THE LAW DIVISION ERRED IN DISPOSING OF
DEFENDANT’S CORRECTION OF ILLEGAL
SENTENCE MOTION AS A SUBSEQUENT PCR.
POINT II
THE MANDATORY EXTENDED TERM
SENTENCE FOR DEFENDANT’S CERTAIN
PERSONS CONVICTION IS ILLEGAL.
POINT III
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THE SENTENCE IMPOSED BY THE JUDGE
BASED ON A FINDING OF FACT BY THE TRIAL
COURT FELL OUTSIDE THE RANGE OF
PUNISHMENT DEFENDANT WAS SUBJECT TO
BASED ON THE JURY’S VERDICT ALONE AND
THEREFORE VIOLATED ALLEYNE 1 AND THE
SIXTH AMENDMENT.
II.
As a preliminary matter, the State agrees the motion judge erred in treating
defendant's motion to correct an illegal sentence as an untimely second PCR
petition. Motions to correct an illegal sentence may be filed at any time. R.
3:21-10(b)(5); State v. Zuber, 227 N.J. 422, 437 (2017).
The State also agrees defendant's conviction and sentence for count six is
illegal. On count six, the jury found defendant guilty of second-degree certain
persons not to have weapons and the trial court sentenced him to a mandatory
extended term of fifteen years in prison with a seven-and-a-half-year parole
disqualifier; however, "a certain persons conviction cannot stand without proof
that a defendant has been previously convicted of an offense specifically
enumerated in [N.J.S.A. § 2C:39-7]." State v. Bailey, 231 N.J. 474, 490 (2018).
1
See Alleyne v. United States, 570 U.S. 99 (2013) ("Any fact that, by law,
increases the penalty for a crime is an 'element' that must be submitted to the
jury and found beyond a reasonable doubt.").
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At trial, the State relied on defendant's prior conviction for attempted
murder in Florida as the enumerated predicate offense. However, at the time of
trial in 2008, attempt to commit an enumerated predicate offense was not itself
an enumerated predicate offense. N.J.S.A. § 2C:39-7; see also State v. Smith,
279 N.J. Super 131, 143-44 (1995).
There is no dispute here. The State failed to meet its burden to allow the
jury to convict defendant on count six; as a result, defendant's conviction on
count six must be vacated. Id. at 490 (holding "[b]ecause the State never proved
an essential element of the certain persons charge to the jury . . . [the] defendant's
conviction cannot stand."). Because defendant's conviction on count six is
illegal, the sentence imposed is illegal and must be vacated as well.
Accordingly, we vacate the July 19, 2019 order and remand with
instructions for the trial court to enter an amended judgement of conviction,
vacating defendant's conviction and sentence on count six. Our decision does
not affect defendant's remaining convictions and sentences.
Vacated and remanded. We do not retain jurisdiction.
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