September 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THEODORE BOESMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, 03-09-0571-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2007
Before Judges A. A. Rodríguez and Parrillo.
In January 2004, defendant Theodore J. Boesman pled guilty, pursuant to a plea agreement, to third degree distribution of heroin, N.J.S.A. 2C:35-5a(1) & -5b(3) (count one); third degree distribution of methadone, N.J.S.A. 2C:35-5a(1) & -5b(3) (count two); and third degree possession of methadone with intent to distribute, N.J.S.A. 2C:35-5a(1) & -5b(13) (count three). The State agreed to recommend a custodial seven-year sentence with a twenty-nine month parole disqualifier and also agreed to dismiss a disorderly persons complaint. At the time of the entry of the plea, the State had not moved for the imposition of a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. Such motion was a prerequisite to the imposition of the sentence contemplated by the parties. This motion was made seven months later just before sentencing. At sentencing, the judge did not address the extended term motion finding that "the procedural requirements [for such motion] were not met and therefore, it is not properly before the court." Despite the fact that defendant had a history of convictions that rendered him ineligible, the judge sentenced defendant to a special probationary term for drug rehabilitation. N.J.S.A. 2C:35-14.
The State appealed. We reversed and remanded for re- sentencing. No. A-838-04T4 (App. Div. August 30, 2005). We noted that defendant was "apprised at the time of his guilty plea of the impending sentencing exposure." Ibid. We held that:
[T]he trial court should not have disregarded defendant's convictions that prevented the imposition of the special probationary sentence. N.J.S.A. 2C:35-14a(6). The sentence imposed was contrary to law and we are constrained to vacate it and remand for re-sentencing.
In connection with the resentencing, it is undisputed that the State's motion for the imposition of an extended mandatory term of imprisonment, N.J.S.A. 2C:43-6f, was filed late. The court, however, abused its discretion by failing even to consider the motion. No prejudice to defendant appears to have arisen as a result of the late filing of the extended term motion by the State, nor was there a finding of prejudice to defendant. In these circumstances, we direct that upon resentencing, the Law Division consider and rule on, with appropriate findings, R. 1:7-4, the extended term motion if the State intends to pursue it.
Upon sentencing on remand, the judge imposed, consistently with the plea agreement, a five-year term with a twenty-nine month parole disqualifier.
Defendant appeals asserting that the judge "erroneously believed that the Appellate Division  had dictated that [he] grant such motion on remand by finding no prejudice from that delay to Boesman." Defendant contends:
THE COURT REVERSIBLY ERRED (1) IN INTERPRETING THE APPELLATE DIVISION'S AUGUST 30, 2005 OPINION AS MANDATING HIS GRANTING AN EXTENDED TERM UNLAWFULLY WHERE A WRITTEN MOTION FOR AN EXTENDED TERM WAS NOT TIMELY FILED AND WHERE NO GOOD CAUSE FOR THAT DELAY WAS SHOWN AND (2) IN FAILING TO COMPLY WITH THAT OPINION BY SETTING FORTH HIS REASONS FOR HIS DISPOSITION OF THAT MOTION ABSENT ANY FINDING ON GOOD CAUSE FOR THE STATE'S DELAY. (U.S. CONST. AMENDS. VI & XIV; N.J. CONST. (1947) ART. I, PARA 10)
The re-sentencing transcript supports this contention. The judge said:
Accordingly, and in keeping with the direction of the Appellate Court decision, this Court must first address the State's motion of an extended term under N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3.
Counsel stipulated that [defendant's] criminal history includes Middlesex County Judgment of Conviction entered on January 9, 1989, on Indictment No. 532-3-87, on the charges of possession of controlled dangerous substance with intent to distribute; that is, pure freebase, in violation of N.J.S.A. 24:21-19b(2), and maintaining a narcotics resort, in violation of N.J.S.A. 24:21-19a(6).
The Court concludes and counsel agree at least for purposes of argument that in light of his history and the statutory criteria that [defendant] is eligible for the imposition of an extended term pursuant to Rule 3:21-4(e) and N.J.S.A. 2C:43-6f and N.J.S.A. 2C:43-7c.
This Court is of the mind that it is receiving clear direction from the Appellate Division at page, beginning at Page 5 of its decision of August 30, 2005, that in connection with the resentencing it is undisputed that the State's motion for the imposition of an extended mandatory term of imprisonment . . . was filed late. . . .
[H]owever, this Court abused its discretion by failing even to consider the motion.
The [Appellate] Court went on to point out, and I think that this Court is impelled to follow it, that no prejudice to the defendant appears to have arisen as a result of the late filing of the extended term motion by the State. And it went on to point out that nor was there a finding of prejudice to the defendant. I find that there was not, and am of the belief that I must follow the clear direction of the Appellate Division as far as the prejudice question is concerned.
The judge then went on to impose the new sentence. At the outset, we point out that we ordered the judge on remand to address the motion. We expressed no view whether the motion should be granted. We conclude that the judge followed our remand instruction by considering the motion. However, the judge granted the motion not based on his analysis of the standard for granting or denying such motions, but on his erroneous perception that we were compelling him to grant it. Our comment that "no prejudice to defendant appears" was not meant to compel a specific ruling by the judge. Therefore, we reverse the sentence and remand for a consideration by the trial judge of the motion for an extended term. The judge must make findings pursuant to R. 1:7-4.
We need not reach the second contention raised by defendant.
ASSUMING THE STATE'S MOTION FOR AN EXTENDED TERM IS REJECTED AS ARGUED IN POINT I, [DEFENDANT] SHOULD BE SENTENCED TO PROBATION UNDER N.J.S.A. 2C:45-1a.
Reversed and remanded. We do not retain jurisdiction.
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