On appeal from Superior Court of New Jersey Law Division, Monmouth County.
J. H. Coleman and Long. The opinion of the court was delivered by J. H. Coleman, J.A.D.
[210 NJSuper Page 63] The core question raised on this appeal is whether merger by the Appellate Division of two counts of an indictment which formed the basis for a plea agreement may dilute the plea agreement to such an extent as to require vacating the plea agreement. Defendant pleaded guilty to two counts of possession of heroin and cocaine with intent to distribute, contrary to N.J.S.A. 24:21-19a(1). As part of the plea agreement, the State agreed not to seek an extended term and to allow defendant to preserve his right to appeal the denial of all of his pretrial motions. Defendant was sentenced to consecutive 12 year custodial terms and required to serve five years on each count before becoming eligible for parole. The judgment of conviction was affirmed by us on July 31, 1984 under A-334-83T4.
Thereafter, a petition for rehearing was filed with the Appellate Division. The application was granted and in a decision dated January 30, 1985, the two convictions were merged pursuant to State v. Truglia, 97 N.J. 513 (1984). The matter was remanded for resentencing. At the resentencing, the State's motion for an enhancement of sentence pursuant to N.J.S.A. 24:21-29*fn1 was granted. After merging the heroin and cocaine charges, defendant was sentenced to a custodial term of 24 years with 10 years of parole ineligibility.*fn2
Defendant has appealed, contending:
1. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO AN EXTENDED TERM AS A SECOND OR SUBSEQUENT OFFENDER.
2. DEFENDANT'S UNITED STATES CONSTITUTIONAL RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS HAVE BEEN VIOLATED BY STATE'S FAILURE TO HONOR TERMS OF PLEA AGREEMENT.
3. DEFENDANT'S UNITED STATES CONSTITUTIONAL RIGHTS TO DUE PROCESS WERE DENIED BY IMPOSITION OF HEAVIER SENTENCE UPON RESENTENCING ON MERGED COUNT.
It is clear from the record, and the State concedes as much, that the enhanced sentence which defendant is currently serving violates the terms of the plea agreement which prohibited the imposition of an extended term. We read the plea agreement to prohibit any enhancement of sentence either pursuant to N.J.S.A. 2C:44-3a or N.J.S.A. 24:21-29. When the present offenses occurred on December 22, 1982, defendant had already been convicted on August 5, 1982 for a violation of N.J.S.A. 24:21-20a(1). That conviction was affirmed on December 14, 1983. The definition of prior conviction contained in N.J.S.A. 2C:44-4b has no application to a determination of whether a prior conviction exists under N.J.S.A. 24:21-29b. Therefore, it is clear that when defendant was resentenced on July 3, 1985 to
the extended term pursuant to N.J.S.A. 24:21-29, he was eligible for such a sentence even though the plea agreement precludes any extended term. Because we recognize that the plea agreement must be meticulously followed, State v. Kovack, 91 N.J. 476, 483 (1982), we must now decide whether the merger has altered the plea agreement to such an extent that the parties should be returned to the status quo ante.
The State argues that it, too, is entitled to enforcement of the plea agreement. Boiled down, its argument is that the plea agreement exposed defendant to a custodial term of 24 years with 12 years of parole ineligibility and that the merger should not be allowed to unilaterally alter the term of exposure. We recognize, as did our Supreme Court in State v. Rodriguez, 97 N.J. 263, 273-274 (1984) that the two counts that were merged formed the basis for the original sentence. The merger made it legally impossible to impose the original sentence on the merged count, absent an extended term. The initial decision by the Appellate Division on July 31, 1984 in A-334-83T4 found that the original sentences were not excessive or otherwise violative of sentencing guidelines. In the subsequent decision merging the two offenses the court ordered a "remand for resentencing under State v. Rodriguez, 97 N.J. 263, 277 (1984), with the proviso that any resentence should not exceed the original aggregate sentence of 24 years with ten years minimum parole eligibility. . . ." By this language it is apparent that the merger should not be an automatic reduction in the original sentence. This language, unfortunately, did not consider the "no extended term" provision of the plea agreement. But as Rodriquez also observed, after a merger of interdependent offenses for which the original sentences were imposed, the sentence following merger should not "be fortuitous and wholly unrelated to the legitimate factors that courts are adjured to follow in dispensing appropriate criminal punishment." Id. at 276.
It would indeed be anomalous if defendant could not receive punishment that reflects the true ...