Opinion
DOCKET NO. A-0702-11T2
05-09-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ARTHUR HOWARD, a/k/a GERMAN JOHN, TAYLOR JOHNNY, GARMAN BODIE, HOWARD BILLY, GARMON RASHAEDE, GARMON DEXTER A., and GARMON JOHN, Defendant-Appellant.
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief). Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Waugh, and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 10-02-0209 and 10-01-0037.
Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).
Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief). PER CURIAM
Defendant Arthur Howard appeals his sentence, following a guilty plea, for third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(a)(1), and third-degree possession of a CDS in a school zone with intent to distribute, contrary to N.J.S.A. 2C:35-7(a). He challenges the resulting aggregate sentence of incarceration for seven years with forty-two months of parole ineligibility. We remand for resentencing.
I.
We discern the following facts and procedural history from the record on appeal.
Howard was charged in two Middlesex County indictments, both returned in early 2010. The first charged him with third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1). The second indictment charged Howard with third-degree possession of cocaine on a different occasion; third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(3); and third-degree possession of cocaine in a school zone with intent to distribute, contrary to N.J.S.A. 2C:35-7(a).
Howard pled guilty to the count of third-degree possession of cocaine from the first indictment and the count of third-degree possession of cocaine with intent to distribute in a school zone from the second indictment. He gave a factual basis for each count of the plea at a hearing on July 23, 2010. As part of the plea agreement, the prosecutor agreed to dismiss the remaining charges and to recommend an aggregate seven-year prison term with forty-two months of parole ineligibility, concurrent to the sentence Howard was serving at the time.
On February 25, 2011, the sentencing judge imposed an extended term of seven years in prison with forty-two months of parole ineligibility on the school-zone offence, with a concurrent five-year prison term for the simple possession. This appeal followed.
II.
Howard raises the following issues on appeal:
POINT I: ATTORNEY GENERAL DIRECTIVE NO. 2010-4, WHICH REQUIRES EXTENDED TERMS IN ALL CASES ELIGIBLE UNDER N.J.S.A. 2C:43-6[f], UNLESS THE DEFENDANT WAIVES HIS RIGHT TO BE SENTENCED IN THE COURT'S DISCRETION UNDER N.J.S.A. 2C:35-7[b], IS CONTRARY TO LEGISLATIVE INTENT AND UNCONSTITUTIONAL. N.J. Const. Art. III, ¶ 1. (Not Raised Below).
POINT II: IN IMPOSING THIS EXCESSIVE SENTENCE, THE JUDGE FAILED TO CONSIDER THAT THE 42-MONTH PAROLE DISQUALIFIER WAS NOT MANDATORY BECAUSE IT WAS NOT LESS THAN THAT REQUIRED BY LAW. U.S. Const. Amend. VIII, XIV; N.J. Const. Art. I, ¶¶ 1, 12.
Because the record demonstrates that Attorney General Directive No. 2010-4 was not applied here, we find Point I to be without merit and not warranting further discussion, R. 2:11-3(e)(2), other than the following comments.
There is nothing in the record to suggest that Attorney General Directive No. 2010-4 played any part in the formulation of the plea offer in this case. We note that the directive is dated July 1, 2010, and that the plea was entered on July 23. The directive is not mentioned in the transcript of the plea or the sentencing, nor was its application otherwise raised in the trial court. Consequently, we decline to address the issue and express no opinion on its merits.
With respect to the sentence, we note that the sentencing judge did not accord Howard the opportunity to address her on the issue of sentencing. R. 3:21-4(b) ("Before imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment.").
Howard addressed the judge with respect to his application to withdraw his plea, which was denied and has not been raised on appeal.
In addition, Howard correctly argues that the judge could have imposed a three-year period of parole ineligibility under N.J.S.A. 2C:43-6(f). That statute provides, in relevant part, that "[t]he minimum term [of parole ineligibility] shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater." Because one-third of a seven-year term is less than three years, the three-year provision applies. The plea offer provided for a recommendation of forty-two months, which is greater than three years. N.J.S.A. 2C:35-12, which allows a judge to impose a lesser sentence or period of parole ineligibility under certain circumstances pursuant to a plea agreement, "does not limit the judge's sentencing discretion to accepting or rejecting the [prosecutor's] recommendation" unless the recommended term is shorter than the mandatory minimum. State v. Thomas, 253 N.J. Super. 368, 374 (App. Div. 1992). Our review of the sentencing transcript convinces us that the judge did not consider imposing an ineligibility period shorter than the forty-two months recommended by the State, nor did she explain her reasons for not doing so.
On remand, the judge shall allow allocution on sentencing as required by Rule 3:21-4(b) and shall consider whether to impose a period of parole ineligibility between the required thirty-six months and the recommended forty-two months, explaining her reasons for the resulting sentence. We express no view on the merits of that determination.
Remanded for resentencing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION