State v. Robinson

• Decision Date: 05 June 2014
• Citation: 92 A.3d 656,217 N.J. 594
• Court: New Jersey Supreme Court
• Parties: STATE of New Jersey, Plaintiff–Respondent, v. James W. ROBINSON, Defendant–Appellant.

217 N.J. 594

92 A.3d 656

STATE of New Jersey, Plaintiff–Respondent,

v.James W. ROBINSON, Defendant–Appellant.

Supreme Court of New Jersey.

Argued Sept. 9, 2013.

Decided June 5, 2014.

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General of New Jersey, attorney).

Judge CUFF (temporarily assigned) delivered the opinion of the Court.

In this appeal we consider extended term sentencing in a context not previously considered by the Court. In earlier opinions, the Court addressed the distinction between a discretionary or persistent offender extended term and a mandatory extended term, State v. Martin, 110 N.J. 10, 16, 538 A.2d 1229 (1988), the need for the prosecutor to provide notice to the defendant of his or her intention to seek an extended term, State v. Thomas, 195 N.J. 431, 436, 950 A.2d 209 (2008), and the analysis the trial court must employ in its decision to impose an extended term, State v. Thomas, 188 N.J. 137, 138, 902 A.2d 1185 (2006) (addressing mandatory repeat drug offender extended term sentences); State v. Pierce, 188 N.J. 155, 158, 902 A.2d 1195 (2006) (addressing discretionary extended term sentences).

This appeal requires the Court to address N.J.S.A. 2C:44–5(a)(2), which limits the number of extended terms that may be imposed in a single sentence. A defendant may be sentenced to multiple mandatory extended terms in the same proceeding. State v. Connell, 208 N.J.Super. 688, 697, 506 A.2d 829 (App.Div.1986) (permitting multiple Graves Act mandatory terms of parole ineligibility in same sentence). On the other hand, N.J.S.A. 2C:44–5(b)(1) prevents a trial court from imposing a discretionary extended term for an offense when the defendant is already imprisoned on another extended term. State v. Hudson, 209 N.J. 513, 517, 39 A.3d 150 (2012). Here, we address whether a trial judge may impose a mandatory extended term and a discretionary extended term in the same sentencing proceeding.

This is the second time defendant has appeared before this Court concerning his conviction for two drug transactions in December 2003 and January 2004. In State v. Robinson, 200 N.J. 1, 18, 974 A.2d 1057 (2009), the Court held that a twenty- to thirty-second delay between the police knocking and announcing their presence to execute a search warrant and the forcible entry into defendant's apartment was not unreasonable.

Defendant then filed a motion to reduce his fifteen-year term of imprisonment subject to a five-year period of parole ineligibility. The trial court had imposed two mandatory extended terms on one count of second-degree distribution of a controlled dangerous substance (CDS) within 500 feet of public property and one count of third-degree possession of CDS with intent to distribute. Treating the motion as an application to correct an illegal sentence, the trial court held that the mandatory repeat drug offender extended term should not have been imposed on the second-degree offense. The trial court then imposed a discretionary persistent offender extended term sentence of fifteen years' imprisonment subject to a five-year period of parole ineligibility on the second-degree offense and a mandatory repeat drug offender extended term of seven years' imprisonment subject to a three-year period of parole ineligibility on the third-degree offense. Defendant maintains that this sentence also is illegal.

We hold that the plain language of N.J.S.A. 2C:44–5(a)(2) bars the imposition of a discretionary extended term when the prosecutor has requested one and the trial court is obliged to impose a mandatory extended term on another offense in the same proceeding. The statutes governing sentencing provide sufficient flexibility to fashion an appropriate sentence to address the repeat offender without resorting to multiple extended terms. To that end, when a defendant is eligible for imposition of both a discretionary extended term and a mandatory extended term, the State may elect which extended term it wishes to pursue. We, therefore, reverse the judgment of the Appellate Division and remand the matter for resentencing.

I.

A.

On December 10, 2003, defendant sold three bags of crack cocaine to a Pine Hill undercover officer. A subsequent investigation revealed defendant was selling drugs from his apartment. On January 16, 2004, a search warrant was executed on defendant's apartment.¹ Police found $4,124 in United States currency, a paper ledger, a scale, and clear plastic bags containing a rock-like substance.

Defendant was indicted for third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35–5(b)(3) (count one); second-degree possession of CDS with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35–7.1 (count two); third-degree possession of CDS, N.J.S.A. 2C:35–10(a)(1) (count three); and third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35–5(b)(3) (count four). Counts one and two of the indictment arose from the December 10 transaction and counts three and four stemmed from the January 16 search of defendant's apartment. A jury convicted defendant on all counts.

Defendant had a lengthy criminal history. Prior to the current conviction, defendant had a 1994 conviction of distribution of CDS in a school zone; a 2000 conviction for receiving stolen property, eluding a police officer, and burglary; and a 2002 conviction for criminal restraint exposing another to serious bodily injury.²

At the time of his sentencing hearing, defendant was serving a three-year prison term with eighteen months of parole ineligibility for the 2002 criminal restraint conviction. At the sentencing hearing, the State moved for a mandatory extended term as a result of the 1994 conviction. The trial court determined that the law permitted imposition of two mandatory repeat drug offender extended terms. The trial court also found the following aggravating factors applied: the risk defendant might commit another crime, N.J.S.A. 2C:44–1(a)(3); the extent of defendant's previous criminal record and serious offenses of which he has been convicted, N.J.S.A. 2C:44–1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44–1(a)(9). The court found no mitigating factors.

The trial court merged count one into count two, and count three into count four. The court sentenced defendant to two mandatory extended terms pursuant to N.J.S.A. 2C:43–6(f), “as a subsequent drug offender.” On count two, possession of CDS with intent to distribute within 500 feet of public property, the court sentenced defendant to a mandatory extended term of fifteen years' imprisonment subject to a five-year period of parole ineligibility. On count four, possession of CDS with intent to distribute, the trial court sentenced defendant to a concurrent mandatory extended seven-year term of imprisonment subject to a three-year period of parole ineligibility. The trial court directed that these terms were to be served consecutively to the term he was serving on the 2002 conviction.

Defendant appealed, and following reinstatement of defendant's conviction and sentence by this Court, Robinson, supra, 200 N.J. at 22, 974 A.2d 1057, defendant moved in the trial court for a reduction of sentence. Defendant argued that he was sentenced erroneously to more than one extended term contrary to N.J.S.A. 2C:44–5(a)(2). The State conceded that distribution of CDS within 500 feet of public property is not a predicate offense for a mandatory extended term pursuant to N.J.S.A. 2C:43–6(f).³ Treating defendant's motion as one to correct an illegal sentence, Rule 3:22–12(a), the trial court determined that defendant qualified as a persistent offender pursuant to N.J.S.A. 2C:44–3(a) and imposed a discretionary persistent offender extended term on count two of fifteen years' imprisonment subject to a five-year period of parole ineligibility. The mandatory extended term on count four remained unchanged. The aggregate sentence also remained the same: fifteen years in prison subject to a five-year period of parole ineligibility.

B.

Defendant appealed. Defendant argued that the revised sentence was illegal because it violated the statutory bar on imposition of multiple extended terms. N.J.S.A. 2C:44–5(a)(2). Defendant acknowledged that the mandatory extended term on count four is legal. He argued, however, that the discretionary extended term on count two is illegal pursuant to the plain language of N.J.S.A. 2C:44–5. Defendant maintained that the maximum sentence that could have been imposed on count two was ten years. He also contended that the trial court failed to make any findings of fact to permit a parole ineligibility term on count two. In an unpublished order, the Appellate Division affirmed defendant's sentence. The panel concluded that State v. Singleton, 326 N.J.Super. 351, 355, 741 A.2d 168 (App.Div.1999) governed the imposition of extended terms and found that the “N.J.S.A. 2C:44–5(a)(2) prohibition of more than one extended term ‘[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense,’ does not apply to mandatory extended terms. It clearly governs the imposition of discretionary extended terms.”

This Court granted defendant's petition for certification. 212 N.J. 455, 55 A.3d 726 (2012).

II.

A.

Defendant contends that his sentence is illegal because the plain language of N.J.S.A. 2C:44–5(a)(2) bars the imposition of a discretionary extended term on count two, because he was subject to a mandatory extended term on count four. He contends that the plain language of the statute precludes imposition of more than one extended term unless a specific statute overrides the general bar.

Defendant relies on Hudson, supra, 209 N.J. 513, 39 A.3d 150. He interprets Hudson...