June 26, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES MCCLENNION, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-02-0322 and 03-11-2258.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2007
Before Judges Parker and Messano.
Defendant James McClennion appeals from two judgments of conviction, one entered in Indictment 03-11-02258 and the other in Indictment 04-02-00322.
After pleading guilty in Indictment 03-11-02258 to first degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1); and second degree possession of a weapon by certain persons not authorized to have weapons, N.J.S.A. 2C:39-7, defendant was sentenced to an aggregate term of twelve years subject to five years parole ineligibility.
Defendant also pled guilty in Indictment 04-02-00322 to third degree absconding from parole, N.J.S.A. 2C:29-5b. On that offense he was sentenced to a term of five years to be served concurrently with the term imposed on Indictment 03-11-02258.
In this appeal, defendant does not challenge his convictions. Rather, he challenges his sentences as follows:
SINCE THE BRIMAGE GUIDELINES PROVIDE FOR MANDATORY MINIMUM SENTENCES WHICH ARE BASED ON FACTORS NOT FOUND BY A JURY BEYOND A REASONABLE DOUBT, AND SINCE THESE MANDATORY SENTENCES ARE BINDING ON ALL SENTENCING JUDGES, THEY RUN AFOUL OF THE SIXTH AMENDMENT. THE GUIDELINES MUST THUS BE CONSIDERED AS ADVISORY PROVISIONS THAT RECOMMEND RATHER THAN REQUIRE THE IMPOSITION OF PARTICULAR SENTENCES IN RESPONSE TO DIFFERING SETS OF FACTS, TO BRING THEM INTO CONFORMANCE WITH THE SIXTH AMENDMENT PURSUANT TO UNITED STATES V. BOOKER. FURTHERMORE, THE PRESUMPTIVE SCHEME UPON WHICH THE GUIDELINES ARE BASED DOES NOT CONFORM WITH THE REQUIREMENTS OF STATE V. NATALE, THUS ENTITLING DEFENDANT TO A REMAND FOR RESENTENCING. (Not Raised Below)
BECAUSE DEFENDANT DOES NOT HAVE THE REQUISITE PRIOR CONVICTION, HIS GUILTY PLEA TO POSSESSION OF A WEAPON BY A CONVICTED PERSON, MUST BE VACATED AND THE CHARGE DISMISSED
In State v. Thomas, 392 N.J. Super. 169, 183-84 (App. Div. 2007), we addressed the issue raised in defendant's first point and held that the Brimage*fn1 Guidelines are not affected by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed. 2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004); and State v. Natale, 184 N.J. 458 (2005). These cases "do not apply to sentences negotiated between a defendant and a prosecutor pursuant to [N.J.S.A. 2C:35-12] and . . . do not apply to the mandatory minimum periods of parole ineligibility that are set forth in the [Brimage] Guidelines." Thomas, supra, 392 N.J. Super. at 188.
Accordingly, the sentence imposed in accordance with the Brimage Guidelines is affirmed.
With respect to defendant's second argument, he contends that, while he acknowledged during his plea hearing that he had a prior conviction for unlawful possession of a handgun, that is not a predicate offense for conviction of possession of a weapon by certain person prohibited from possessing weapons. The State concedes that defendant is correct on this point and that his conviction for violating N.J.S.A. 2C:39-7 should be vacated.
Accordingly, we vacate defendants conviction on N.J.S.A. 2C:39-7 and remand for amendment to the judgment of conviction to reflect the vacation. The amendment on that count will not affect defendant's aggregate sentence.
Affirmed in part; vacated in part and remanded.