Opinion
DOCKET NO. A-0579-13T4
10-16-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DELMAR TAYLOR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Robert A. Ballard, III, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 05-05-1086 and 08-12-1975. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Robert A. Ballard, III, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Delmar Taylor appeals from an April 10, 2013 order denying his petition for post-conviction relief (PCR) and his motion to correct an illegal sentence. We affirm the imposition of the extended term for defendant's drug-related conviction, but we remand for correction of the judgment of conviction (JOC).
In 2008, defendant was indicted for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1); third-degree school zone possession of CDS with intent to distribute, N.J.S.A. 2C:35-7; second-degree CDS possession with intent to distribute near a public park, N.J.S.A. 2C:35-7.1; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). Defendant also faced three charges of violating probation (VOP). In 2010, defendant and the State agreed on a "global disposition" of all of the outstanding charges. As part of the agreement, defendant would plead guilty to third-degree CDS possession with intent to distribute in a school zone, fourth-degree resisting arrest, and violating probation, and the State agreed to recommend a total sentence of six years in prison with a three-year parole bar.
Defendant had been sentenced to five years of probation on December 13, 2007, conditioned on his entering an intensive drug treatment program.
On October 21, 2010, defendant appeared at the plea hearing and acknowledged his agreement to a "global" sentence of six years with a three-year parole bar, which would encompass the charges specified in the plea agreement. He then admitted that he possessed cocaine with intent to distribute within 1000 feet of a school, and admitted purposely attempting to flee from a police officer who was trying to arrest him.
On December 6, 2010, defendant appeared for sentencing. At that hearing, his attorney acknowledged that the proposed sentence was a "global resolution" of the current CDS and resisting arrest charges as well as "three VOPs" relating to a 2007 probationary sentence. After the State recommended that the trial court accept the agreed-on sentence, the judge sentenced defendant "on . . . . Counts three and five to six years with a five-year period of parole ineligibility." The judge also imposed three concurrent five-year terms for the VOPs, which consistent with the plea deal were also concurrent to the six-year term. Defendant received 209 days of jail credit.
This was corrected in the JOC to reflect the agreed-on three years of parole ineligibility.
Thus, defendant was able to resolve all pending charges by accepting an aggregate term of six years with a three-year parole bar. The resulting JOC imposed one aggregate sentence of six years for both offenses "concurrent to each other" and concurrent to the sentences imposed for the VOPs.
Defendant did not file a direct appeal but later filed a PCR petition and a motion to correct an illegal sentence. Defendant argued that the six-year term related only to the third-degree CDS conviction and, as such, was an illegal sentence. He also contended that his former trial attorney was ineffective in failing to negotiate a more favorable plea agreement. The prosecutor responded that defendant was eligible for an extended term, due to his prior CDS convictions, and that the written plea form acknowledged that he was eligible for a mandatory minimum sentence of six years with a three-year parole bar. He also pointed out that, if convicted on all the original charges, defendant faced up to twenty-five years in prison, and the State would not have agreed to less than a six-year sentence as part of a plea agreement.
In an oral opinion, the judge concluded that defendant's former trial counsel was not ineffective, and that defendant understood the terms of the plea deal and voluntarily agreed to them. The court also declined to disturb the sentence, because defendant was eligible for a mandatory extended term on the CDS conviction, pursuant to which six years was a lawful sentence.
On this appeal, defendant raises the following points for our consideration:
POINT I
THE DEFENDANT WAS ILLEGALLY SENTENCED TO AN EXTENDED TERM; THE LAW REQUIRES THAT THE EXTENDED TERM BE VACATED.
POINT II
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.
POINT III
THE DEFENDANT SHOULD BE GRANTED RELIEF OR THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING.
There is no dispute that defendant was eligible for a mandatory extended term for the CDS offense, which could have resulted in a maximum term of ten years in prison, with five years of parole ineligibility. See N.J.S.A. 2C:43-6(f); N.J.S.A. 2C:43-7(a)(4). Rule 3:21-4 provides that the State need not make a formal motion to impose an extended term, where the imposition of an extended term is part of a plea agreement: "If the negotiated disposition includes the recommendation of an extended term, the prosecutor's oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State's motion." R. 3:21-4(e).
The procedure followed here was not precisely consistent with the Rule, in that neither attorney specifically stated on the record that defendant would be receiving an extended term. However, the State had given defendant a written plea offer under the Brimage guidelines, which stated that he was extended-term eligible and stated the precise extended term offer to which he eventually agreed. When he later filled out and signed the written plea form, defendant answered "yes" to the question asking if he was pleading guilty to an offense that required a mandatory extended term or a mandatory minimum term. This question listed the same term of six years with a three year parole bar. There is no question that defendant well understood the sentence he would be receiving, and in light of his numerous prior CDS convictions, it was a lawful sentence for school zone CDS possession with intent. See State v. Szemple, 332 N.J. Super. 322, 329-30 (App. Div.), certif. denied, 165 N.J. 604 (2000). Therefore we affirm the imposition of the extended term CDS sentence.
Even without imposing an extended term, the court could have arrived at the same aggregate sentence by imposing an ordinary term for the CDS offense, and a consecutive term for resisting arrest.
However, the JOC did not impose a specific sentence for resisting arrest, and as currently worded it could be construed as imposing six-year sentences for the CDS conviction and the resisting arrest conviction "concurrent to each other," which would be an illegal sentence for resisting arrest. Alternately, it could be construed as imposing no prison term for resisting arrest. Even if the parties agree to a global resolution of several charges, the resulting JOC should specify which sentence is being imposed for each offense, and whether the sentences are concurrent or consecutive. See N.J.S.A. 2C:44-5(a). In this case, it is clear that both parties, and the sentencing court, intended that defendant receive the six-year extended term for the CDS offense. In fairness to defendant in light of the State's consistent characterization of the sentence, we remand for correction of the JOC to reflect imposition of a six-year term, three years without parole, for the CDS conviction, and a concurrent sentence of time served for resisting arrest.
Defendant remains entitled to 209 days of jail credit against his sentence for the CDS conviction. --------
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part, remanded in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION