State v. Wilson
| Citation | 502 A.2d 46,206 N.J.Super. 182 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Clyde WILSON, Defendant-Appellant. |
| Decision Date | 04 December 1985 |
| Court | New Jersey Superior Court – Appellate Division |
Thomas S. Smith, Public Defender, for defendant-appellant (Jeffrey N. Greenman, Designated counsel, of counsel and on letter brief).
Irwin I. Kimmelman, Atty. Gen., for plaintiff-respondent (Jessica S. Oppenheim, Deputy Atty. Gen., of counsel and on letter brief).
Before Judges COHEN and ASHBEY.
Defendant was charged in a four count indictment with burglary ( N.J.S.A. 2C:18-2), possession of a weapon for an unlawful purpose ( N.J.S.A. 2C:39-4), possession of a weapon by a person convicted of crime ( N.J.S.A. 2C:39-7) and unlawful possession of a weapon ( N.J.S.A. 2C:39-5(d)). Following plea negotiations, defendant entered a plea of guilty to the burglary charge. The undertaking of the State was to move to dismiss the other counts and to recommend that any custodial sentence not exceed ten years with any mandatory minimum not to exceed three years. Defendant further agreed that if he failed to appear at the time of sentencing, he would be subject to an extended term of twenty years with a mandatory minimum not to exceed ten years. A sentencing date was set and defendant was freed on bail. Defendant failed to appear at sentencing. Bail was revoked. He was arrested approximately two months later.
At the second sentencing hearing defendant advised the court that he was unable to appear on the original date because he had been very sick and under the care of a doctor. He referred to a doctor's disability certificate which had been forwarded to the court a few days after the original sentencing date. The court rejected the defendant's explanation without holding a hearing and proceeded to sentence the defendant to a term of twenty years with a mandatory minimum of ten years.
The primary issue presented for our determination is whether the court erred in honoring the plea agreement for an extended term in the event of defendant's nonappearance at sentence. Because we are convinced that a sentence based entirely upon nonappearance in court is an illegal sentence, we reverse.
We recognize that defendant, by the age of 36, had a long juvenile and adult criminal record beginning in 1962. Surely, the State had a right to move for an extended sentence if defendant so understood as a part of his agreement. State v. Kovack, 91 N.J. 476, 453 A.2d 521 (1982). What is improper is a sentence based upon a factor which is unrelated to the sentencing criteria set forth in the Code of Criminal Justice. N.J.S.A. 2C:1-1 et seq. Nowhere in the code is it suggested that defendant's appearance for sentence is one of those criteria. State v. Roth, 95 N.J. 334, 471 A.2d 370 (1984); State v. Hodge, 95 N.J. 369, 471 A.2d 389 (1984).
We do...
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...trial court must always sentence in accordance with the applicable sentencing provisions of the Code. Thus, in State v. Wilson, 206 N.J.Super. 182, 502 A.2d 46 (App.Div.1985), under a somewhat similar alternative plea agreement, we set aside an extended sentence imposed solely because of th......
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