On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-02-0243.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, S.L. Reisner and C.L. Miniman.
The State appeals from a sentence imposed following a revocation of probation asserting the judge erred in failing to impose a mandatory No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, term of parole ineligibility. We agree and remand to correct the sentence imposed.
On February 19, 2003, defendant, Brett Kearns, was indicted by a Middlesex County grand jury with one count of second-degree robbery, N.J.S.A. 2C:15-1. On June 16, 2003, pursuant to a negotiated plea agreement, defendant pled guilty to the indictment. The State agreed that it would recommend a sentence of five years with eighty-five percent parole ineligibility pursuant to NERA. The plea agreement provided that the sentence would be delayed until completion of a drug rehabilitation program at Renaissance. The prosecutor "consent[ed] to a motion to reconsider after 4 months and positive performance in the [rehabilitation] institution."
On December 8, 2003, defendant was sentenced to a five-year term of imprisonment with an eighty-five percent period of parole ineligibility. At sentencing, the judge noted that the prosecutor "acquiesced in [defendant's] making a motion . . . asking . . . to modify [the] sentence" and reminded counsel that such a motion under R. 3:21-10 must be made within sixty days. On December 18, 2003, defendant filed his motion to reduce the sentence pursuant to R. 3:21-10(a). On the return date of the motion, the prosecutor acknowledged that defendant had "cooperat[ed] . . . substantial[ly]" with the plea agreement and agreed that "as soon as [defendant] serves his four months the deal is a deal. I don't have a problem with him getting out." Based upon the State's consent, the judge converted defendant's sentence to five years of probation on condition that he serve four months in jail. The judgment was amended accordingly.
In 2004, defendant violated probation by failing to report to the probation office on several occasions, failing to cooperate with the probation office, and by failing mandatory drug screenings. On April 1, 2005, defendant pled guilty to violating probation. A sentencing hearing was held on April 11, 2005. The State sought a reinstatement of the original term of five years with the NERA period of parole ineligibility. It argued that the judge had no discretion to waive a NERA sentence and that allowing defendant to make a motion to reconsider the sentence was improper and the court's decision to sentence defendant to probation was illegal. Defendant argued for a sentence of either 364 days in the County facility or a flat three-year term.
Noting that defendant was being sentenced for violation of probation rather than the robbery conviction, the judge questioned whether he had authority to impose the NERA period of parole ineligibility. The judge sentenced defendant to a term of fifty-four months (four years and six months) of incarceration with a fifty-percent period of parole ineligibility. On May 31, 2005, the State filed its Notice of Appeal.
On appeal, the State does not challenge the imposition of the fifty-four month sentence, only the failure on the part of the judge to impose the eighty-five percent period of parole ineligibility. It raises the following point:
THE COURT WAS REQUIRED TO IMPOSE A NERA SENTENCE UPON THE VIOLATION OF PROBATION.
Defendant counters, asserting (1) the State's Notice of Appeal, filed fifty days after the date of sentencing, was untimely and (2) the judge was not required to impose a NERA sentence.
We first consider the judge's apparent belief that he could not impose a NERA sentence because the original five-year NERA sentence had been modified, pursuant to R. 3:21-10, to five-years of probation conditioned on defendant serving 120 days in jail. R. 3:21-10 permits a defendant to move to reduce or change a sentence. Subsection (a) of the Rule requires the motion to be filed within sixty days after the judgment of conviction. Subsection (b) of the Rule provides exceptions to the sixty-day filing requirement, allowing the motion to be filed "at any time" under the six enumerated circumstances, one of which is "for good cause shown upon the joint application of the defendant and prosecuting attorney." R. 3:21-10(b)(3); see State v. Mendel, 212 N.J. Super. 110, 112-13 (App. Div. ...