On appeal from Superior Court of New Jersey, Law Division, Union County, Ind. No. 02-01-0161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 11, 2005 (telephonically)
Remanded by Supreme Court June 28, 2006
Resubmitted September 8, 2006
Remanded September 21, 2006
Before Judges Weissbard and Payne.
In an unpublished opinion filed July 26, 2005, we reversed defendant's second-degree robbery conviction but affirmed his conviction for second-degree eluding. As a result of our reversal, we did not address defendant's sentencing arguments, although we noted that the sentencing judge had erroneously applied the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to the maximum base term (ten years) of defendant's extended term sentence of eighteen years. See State v. Andino, 345 N.J. Super. 35 (App. Div. 2001). The State sought, and the Supreme Court granted, certification to review our reversal of the robbery conviction, and reversed our determination, thereby reinstating defendant's robbery conviction. State v. Thomas, 187 N.J. 119 (2006). The Court remanded the matter to us for consideration of defendant's sentencing arguments. Id. at 138.
In our initial opinion we set out defendant's sentence:
At sentencing, the judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:44-3a and imposed an eighteen-year term on count one, subject to the No Early Release Act (NERA) applied against the maximum base term of ten years. A consecutive ten-year prison term with five years of parole ineligibility was imposed on the eluding conviction, count two. The other sentences - five years on count three, six months on count five, eighteen months on count six and five years on count seven - were all concurrent to the robbery and eluding sentences. Thus, the aggregate sentence was twenty-eight years with thirteen-and-one-half years of parole ineligibility.
In a supplemental opinion of September 21, 2006, we noted that State v. Pierce, 188 N.J. 155 (2006), decided while defendant's appeal was pending, had established new procedures for extended term sentencing, in which the "protection of the public" finding previously required, see State v. Dunbar, 108 N.J. 80, 90 (1987), now became simply another factor for consideration in deciding an appropriate sentence within the entire range from the bottom of the ordinary term to the top of the extended term, with no presumptive term. Pierce, supra, 188 N.J. at 170. In remanding for a new sentencing, we stated:
Here, defendant argued, in part, that his prior record, which included four convictions, two for drug offenses, a third-degree aggravated assault, and a theft, none of which had resulted in a sentence of incarceration, did not justify an extended term, particularly in light of the real-time NERA consequences of any sentence, see State v. Marinez, 370 N.J. Super. 49, 57-59 (App. Div. 2004), certif. denied, 182 N.J. 142 (2004), and the consecutive sentence imposed for eluding. Defendant's argument has considerable merit but, as noted, we did not address the issue in our prior ...