STATE OF NEW JERSEY VS. TROY SWINT (96-10-3475, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5329-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TROY SWINT,
Defendant-Appellant.
Submitted May 28, 2020 – Decided June 15, 2020
Before Judges Alvarez and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 96-10-3475.
Troy Swint, appellant pro se.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
On March 13, 2019, Judge Michael L. Ravin denied defendant Troy
Swint's motion "to correct illegal sentence." On May 13, 2019, Judge Ravin
denied defendant's motion for reconsideration. That application included an
additional ground—that co-defendant Corey Smith's resentence to forty years
subject to twenty years parole ineligibility, consecutive to fifteen years with a
five-year term of parole ineligibility was so disparate a sentence as to warrant
reconsideration of defendant's sentence. Defendant, having been convicted by
a jury of the same crimes as Smith, was resentenced on our remand on March 6,
2000, to life, must serve twenty-five years before parole, to run consecutive to
an extended term of fifteen years, subject to five years without parole. Having
considered defendant's arguments, and reviewed the record, we affirm for the
reasons stated by Judge Ravin.
A jury convicted defendant of first-degree kidnapping, N.J.S.A. 2C:13-
1(b)(1), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). The jury
also convicted defendant of third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d), and second-degree possession of a handgun for
an unlawful purpose, N.J.S.A. 2C:39-4(a). Those crimes were merged with the
kidnapping and aggravated assault charges.
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Since imposition of the sentence, defendant has engaged in various
challenges to his sentence, and appeals of those decisions. Defendant's
conviction and sentence were reviewed and affirmed in State v. Swint, 328 N.J.
Super. 236 (App. Div. 2000). We remanded because the sentencing judge was
obligated to increase the prison term he imposed to include twenty-five years of
parole ineligibility. Id. at 262-63. We also reviewed and found proper the
imposition of consecutive sentences, because of the nature of the crime which
involved the kidnapping and torture of the victim. Id. at 264-65. The Supreme
Court denied defendant's petition for certification. State v. Swint, 165 N.J. 492
(2000).
After the trial judge resentenced him in accordance with our remand,
defendant filed a first petition for post-conviction relief (PCR), which was
denied. He appealed the denial of that petition, alleging ineffective assistance
of trial, appellate, and PCR counsel. State v. Swint, No. A-5545-05 (App. Div.
July 30, 2008), certif. denied, 197 N.J. 14 (2008).
Defendant filed an appeal from a January 8, 2007 decision denying his
motion to correct an illegal sentence. We affirmed by way of unpublished
opinion. State v. Swint, No. A-2850-06 (App. Div. July 9, 2009).
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Defendant's second petition for PCR relief was also denied, appeal taken,
and an unpublished decision rendered affirming the trial court. State v. Swint,
No. A-5733-11 (App. Div. July 25, 2013), certif. denied, 217 N.J. 292 (2014).
It is fair to say that defendant's claims regarding the legality of his sentence have
been repeatedly addressed both in the Law and Appellate Division.
On appeal, defendant argues:
I. THE DECISION TO DENY APPELLANT A
HEARING TO CORRECT AN ILLEGAL SENTENCE
ON THE MATTER OF THE EXTENDED TERM,
AND AN OPPORTUNITY TO MAKE A COMPLETE
RECORD OF THE PROCEEDING VIOLATED
APPELLANT'S SIXTH AND FOURTEENTH
AMENDMENT RIGHTS TO A FAIR AND LEGAL
PROCEEDING.
II. THE SENTENCING COURT ABUSED ITS
DISCRETION WHEN IT IMPOSED A SECOND
MANDATORY EXTENDED TERM SENENCE ON
COUNT THREE OF THE INDICTMENT.
III. THE LOWER COURT ABUSED ITS
DISCRETION WHEN IT FAILED TO VACATE AND
CORRECT APPELLANT'S SENTENCE WHICH IS
DISPROPORTIONATE TO HIS CO-DEFENDANT.
As Judge Ravin concluded, the issue of the legality of the sentence has been
repeatedly considered, in addition to the fact the arguments lacked any inherent
merit.
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Defendant also raises the issue of his co-defendant's resentence. On that
score, the illegality in the co-defendant's sentence was that the co-defendant was
sentenced to one mandatory and one discretionary term when he should have
been sentenced to two mandatory extended terms pursuant to the Graves Act.
Because that sentence was illegal, as opposed to defendant's sentence, which
properly included two mandatory Graves Act sentences from their inception, the
court had to consider the co-defendant as he stood before the judge.
When resentenced, the co-defendant was able to demonstrate
rehabilitative gains since the crimes were committed. See State v. Randolph,
210 N.J. 330, 354 (2012). The co-defendant's remand sentence was necessitated
by a rather unusual combination of circumstances which gave the co-defendant
an opportunity to present his accomplishments to the court while imprisoned,
thus resulting in a reduction of five years of parole ineligibility. That reduction
does not constitute, as Judge Ravin noted, a disparity in sentence that warrants
reconsideration. We agree with defendant that courts are required to sentence
evenhandedly. See State v. Roach, 167 N.J. 565, 570 (2001). That occurred
here.
Affirmed.
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