On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 02-08-1100; 01-12-1716.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2005
Before Judges Stern, Fall and Grall.
On November 21, 2003, defendant Charles Owens plead guilty to charges included in two indictments returned by the grand jurors for Mercer County: Number 01-12-1716, a five count indictment returned on December 27, 2001, and Number 02-08-1100, an eleven count indictment returned on August 20, 2002. Defendant's pleas were entered pursuant to an agreement with the State. Defendant appeals from the final judgments of conviction and sentence.
On the 2001 indictment, defendant plead guilty to count five, second-degree employing a juvenile in a drug distribution scheme, contrary to N.J.S.A. 2C:35-6, and was sentenced to a seven-year term, five without possibility of parole, which is the presumptive term and mandatory minimum period of parole ineligibility. N.J.S.A. 2C:35-6; N.J.S.A. 2C:44-1f(1)(c). He also plead guilty to count three, third-degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-5 and 2C:35-7, and was sentenced to a concurrent five-year term, with three years of parole ineligibility.
On the 2002 indictment, defendant plead guilty to count three, third-degree possession of a controlled dangerous substance (heroin) with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-5 and 2C:35-7. Pursuant to N.J.S.A. 2C:43-6f and based upon his simultaneous conviction on count three of the 2001 indictment, he was sentenced to the presumptive extended term of seven years, with three years of parole ineligibility. That sentence is concurrent with the sentence imposed on the 2001 indictment.
The judge also imposed a $4000 DEDR penalty, a $150 lab fee, a $150 VCCB assessment, a $225 SNSF assessment and a $90 LEOTEF penalty. She required defendant to provide a DNA sample, revoked his driving privileges for twenty-four months and directed him to complete his GED and participate in drug counseling when released on parole.
We conclude that the extended term based upon convictions and sentences entered in the same proceeding is an illegal sentence not authorized by N.J.S.A. 2C:43-6f. We affirm defendant's convictions but remand for resentencing on the 2002 indictment, reduction of the illegal LEOTEF penalty and elimination of the illegal parole conditions.
The procedural history is complex. Prior to entry of the guilty pleas, defendant was tried to a jury on the five counts included in the 2001 indictment. On September 26, 2003, the jury acquitted defendant of count four and convicted him of the remaining four counts.
Sentencing was scheduled for November 21, 2003. On that date, defendant entered into an agreement with the State that addressed all charges on which defendant had been convicted under the 2001 indictment and the charges included in the pending 2002 indictment. Under the agreement the State promised to dismiss the remaining charges in both indictments. The State agreed to recommend the following sentences: on count five of the 2001 indictment, seven years, five to be served without possibility of parole; on count three of the 2001 indictment, a concurrent five year sentence, three years without possibility of parole; and on count three of the 2002 indictment, a concurrent sentence of seven years, three without possibility of parole. Defendant agreed to waive his right to appeal.
Defendant provided the following factual basis. He admitted that on July 24, 2001, he provided a bundle of heroin to W.W., knowing that he was under the age of eighteen. He then watched while W.W. sold the drugs and subsequently collected the proceeds of that sale from W.W. The transaction took place across the street from and within fifty feet of a school. Defendant also admitted that on May 2, 2002, he gave drugs to Daniel English and received the proceeds after English sold the drugs. That transaction took place in the same location, across the street from the school.
The trial judge accepted the factual basis and sentenced defendant in accordance with the agreement immediately following the plea. The sentence imposed is set forth above.
On December 5, 2003, for reasons not reflected on the record, defendant and the State again appeared before the trial judge. The State asked the court to resentence defendant on the 2001 indictment to reflect the verdict returned by the jury. Defendant's attorney did not object, and the judge reinstated counts one and ...