Decided As Amended April 14 1989.: February 17, 1989.
On appeal from Superior Court, Law Division, Mercer County.
Long and Keefe. Keefe, J.s.c. (temporarily assigned).
Defendant, Robert Reldan, pled guilty to conspiracy to commit escape and possession of a weapon for an unlawful purpose. The plea was entered pursuant to a plea agreement whereby the State recommended that the sentences on each count run concurrent to each other but consecutive to the sentence defendant was presently serving, and that the aggregate sentence not exceed 15 years with a 7 1/2 year parole disqualifier. As a part of the plea agreement, the State indicated and defendant acknowledged that he was subject to a mandatory extended term under the Graves Act based on a prior conviction involving a firearm in New York State. Defendant was sentenced to the custody of the Commissioner of the Department of Corrections for a period of 15 years with a 7 1/2 year term of parole ineligibility for possession of a weapon for an unlawful purpose, N.J.S.A. 2C:43-7c, and a concurrent 10 year term on the conspiracy count. The sentences were ordered to run consecutive to the sentence defendant was currently serving. In addition, the trial judge imposed a $25.00 Violent Crimes Compensation Board penalty on each of the two counts.
Defendant appealed from that sentence. We vacated the sentence holding that the escape charge was a crime of the third degree when the offense was committed rather than one of the second degree for which he was sentenced. In addition, we held that the mandatory extended term provision set forth in N.J.S.A. 2C:43-6c is not applicable where defendant's prior firearm conviction occurred in another State.
On remand, the trial judge, over defendant's objection, granted the State's motion out of time for the imposition of an extended term based on defendant's status as a persistent offender. N.J.S.A. 2C:44-3a. At the resentencing hearing defense counsel argued that the persistent offender extended term provision did not apply to a defendant, such as Reldan, who was already serving such a sentence. That argument was rejected by the judge who imposed a prison term of 15 years
with a 7 1/2 year parole disqualifier for second degree possession of a weapon for an unlawful purpose and a concurrent five year prison term for third degree conspiracy to commit an escape. The sentences were ordered to run consecutive to a sentence defendant was then serving. This appeal followed.
The following issues are raised on appeal.
POINT I DEFENDANT-APPELLANT'S EXTENDED TERM IS BOTH ILLEGAL AND IMPROPER IN THAT IT RELIES ON PRIOR CONVICTIONS WHICH WERE ALREADY THE BASIS OF THE EXTENDED TERM HE WAS PRESENTLY SERVING.
POINT II THE SENTENCING COURT ABUSED ITS DISCRETION BY ALLOWING THE STATE TO FILE A MOTION FOR AN EXTENDED TERM OUT OF TIME.
POINT III DEFENDANT-APPELLANT'S SENTENCE IS EXCESSIVE AND AN ABUSE OF DISCRETION.
We have reviewed the record in light of the issues raised by the defendant and conclude that they are clearly without merit. R. 2:11-3(e)(2). However, in affirming the judgement under review we make the following observations.
The time period in which the State may move for the imposition of an extended term may be extended for "good cause". R. 3:21-4d. The circumstances of this case justify Judge Barlow's conclusion that good cause existed. Defendant's plea bargain contemplated that he would be eligible for a mandatory extended term since it was then believed by the State, the defendant and the court that a gun conviction in another state could be used under the Graves Act to satisfy its requirements. This court concluded otherwise and remanded for resentencing. In the same proceeding we determined that the warrantless search of which defendant also complained was valid. Defendant sought certification from the New Jersey Supreme Court, presumably because the search issue was decided against him. Certification was denied on April 28, 1987. Apparently, when the trial judge learned of the denial of the petition for certification he scheduled the matter for resentencing to take place on June 26, 1987. On that date the State moved pursuant to R. 3:21-4 for leave to serve defendant with
notice of the State's intention to apply for an extended term. Defendant objected to the motion. The State was willing to withdraw from the plea agreement and proceed to trial after the reversal of the prior sentence. However, as defendant's brief admits, "Mr. Reldan has not sought to withdraw his plea." That statement is an acknowledgement of defendant's understanding that the State always intended to subject him to an extended term. Defendant has not been prejudiced by the State's application. As ...