Opinion
DOCKET NO. A-2093-10T3
05-11-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROGER LESTER, Defendant-Appellant.
Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro, on the brief). John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 08-05-1480 and 08-06-2054.
Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro, on the brief).
John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
We are presented in this criminal appeal with a situation in which both the convicted defendant and the State seek, although for different reasons, to vacate his 2009 guilty plea to various offenses.
Defendant was named in May 2008 in a five-count indictment (No. 08-05-1480) charging him with first-degree robbery, N.J.S.A. 2C:15-1, and other offenses. Later that year, in June 2008, defendant was charged in a separate five-count indictment (No. 08-06-2054) with committing a different first-degree robbery, and other crimes.
Pursuant to a plea agreement with the State, defendant pled guilty on February 23, 2009 to certain counts of each indictment. In particular, defendant pled guilty to first-degree robbery and two other offenses charged in Indictment No. 08-05-1480, and to first-degree robbery and two other offenses charged in Indictment No. 08-06-2054. The State agreed to dismiss the other counts charged under each indictment, and to recommend a sentence not to exceed twenty years with an eighty-five percent period of parole ineligibility.
We have not been furnished with a copy of the written plea agreement, but the parties do not dispute the terms stated on the record at the plea hearing.
On May 18, 2009, the trial court imposed a sentence consistent with the State's recommendation in the plea agreement, i.e., a term of eighteen years with an eighty-five percent parole disqualifier, along with concurrent terms on the other convictions.
In December 2009, defendant filed with the trial court a petition for post-conviction relief ("PCR"). Defendant contended that his trial counsel was ineffective by failing to (1) provide him correct legal advice regarding the effect of the joinder of the indictments; (2) move to dismiss one of the indictments; and (3) request a Wade hearing on identification. After considering these arguments and the State's opposition, the trial court dismissed the PCR petition on September 30, 2010. The trial court detailed its reasons in an oral opinion.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
Defendant now appeals the rejection of his PCR petition. He argues that the trial court erred in its application of the relevant constitutional principles set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987). By way of relief, defendant seeks to have his guilty plea vacated and to be provided with the opportunity to have new trial counsel pursue the motion practice and other steps that he alleges his original trial counsel should have pursued.
In its response to defendant's appeal, the State opposes his claims of alleged ineffectiveness but raises a different issue: the legality of defendant's sentence. In particular, the State points out, albeit not in a proper cross-appeal pursuant to Rule 2:3-2, that the sentence imposed by the trial court is illegal. The State asserts that, as a result of the two first-degree robbery convictions attained in this case, plus his prior convictions of February 9, 2001 for first-degree robberies occurring on June 30, 1999 and July 29, 1999, defendant is required to serve a life sentence without parole, pursuant to the "Three Strikes Law," N.J.S.A. 2C:4 3-7.1(a).
Defendant does not address this contention but simply argues that the State should not have raised the alleged illegality without filing a cross-appeal. However, we elect in our discretion to consider the illegality issue despite the absence of a cross-appeal. Indeed, the court has the power to correct an illegal sentence, sua sponte. See State v. Jurcsek, 247 N.J. Super. 102, 111 n.3 (App. Div.), certif. denied, 126 N.J. 333 (1991); see also Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 2:3-4 at 588 (2012).
The State concedes that defendant, who was not advised at the plea hearing that he was facing a mandatory life sentence, should be given the opportunity to vacate his guilty plea and resume his defense of the underlying indictments. Given that concession, defendant's arguments concerning the effectiveness of his original counsel need not be addressed at this time, and they may well become moot, pending further developments in the trial court.
We accordingly remand this matter to the trial court to allow the State to move to vacate the convictions and defendant's guilty plea, and to reopen both indictments. Nothing in this opinion precludes defendant's trial counsel on remand from filing any motions that he or she deems appropriate, including a motion to dismiss the indictments and a motion for a Wade hearing on identification.
We do not address whether the principles of State v. Henderson, 208 N.J. 208, 288-93 (2011), will or will not apply to the remand proceedings.
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Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION