October 31, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTOINE LENNON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, 00-02-0500, 00-02-0728, and 99-02-2140.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 9, 2007
Before Judges Collester and C.L. Miniman.
Defendant Antoine Lennon appeals from the denial of his application for post-conviction relief (PCR) with respect to the sentence imposed on October 13, 2000. He contends that he was entitled to a hearing before the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, could be applied to his sentence. We affirm.
Defendant was charged with a variety of offenses in three separate Camden County indictments. In Indictment #2140-6-99 (the CDS indictment), he was charged with third-degree possession of a controlled dangerous substance (CDS) in violation of N.J.S.A. 2C:35-10(a)(1) (count one) and second-degree possession of a CDS with intent to distribute in violation of N.J.S.A. 2C:35-5(b)(2) (count two). In Indictment #500-02-00 (the armed-robbery indictment), he was charged with first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (count one) and third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (count two). Finally, in Indictment 728-02-00 (the nine-count indictment), he was charged with armed robbery in violation of N.J.S.A. 2C:15-1 (count one), second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (count two), third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (count three), third-degree terroristic threats in violation of N.J.S.A. 2C:12-3(a) (count four), fourth-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(4) (count five), first-degree armed robbery in violation of N.J.S.A. 2C:15-1 (count six), second-degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) (count seven), third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b) (count eight) and fourth-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(4) (count nine).
A plea agreement was negotiated and defendant appeared at a plea hearing on July 10, 2000. Defendant agreed to plead guilty to count two of the CDS indictment (possession of a CDS with intent to distribute), count one of the armed robbery indictment (armed robbery) and counts one and six of the nine-count indictment (both armed robbery). In defendant's presence the State agreed to recommend an aggregate term of sixteen years in New Jersey State Prison of which eighty-five percent (thirteen years, seven months and nine days) would be served without parole pursuant to NERA. The sentence was to be concurrent to a sentence then being served in Atlantic County. The State also noted that defendant would be subject to five years of parole supervision pursuant to NERA. The defendant agreed to waive his right to appeal.
At the plea allocution defendant testified with respect to the CDS indictment that on April 2, 1999, he was in possession of more than half of an ounce of rock cocaine, which he intended to sell. He further testified with respect to the armed-robbery indictment that on November 13, 1999, he was in possession of a .25-caliber automatic pistol and that he instructed a taxicab driver, Sikander Manu, to take him to a designated location and he then "pulled a weapon on him, and demanded money." With respect the nine-count indictment, defendant testified that on October 30, 1999, he went to a gas station and pulled a weapon on the attendant, Arif Sohail, and demanded money. The weapon was the same handgun he used against Sikander Manu. Lastly, he testified that on November 14, 1999, he went back to the same gas station and again pulled the same weapon on the same attendant and demanded money. He admitted that he received money as a result of all three armed robberies and that, when he pulled out his weapon, he threatened the victims that he would use the weapon if they did not comply.
Defendant was sentenced on October 13, 2000. The prosecutor again noted that the sentences for armed robbery were subject to NERA with a mandatory eighty-five percent of the sentence to be served before parole and a five-year period of parole supervision. The judge sentenced defendant to sixteen concurrent years of prison on each of the first-degree armed robberies with no parole eligibility for thirteen years, seven months and nine days as well as five years of parole supervision thereafter. The judge explained, "Any time during that you violate parole, they can send you back to complete the sentence." On the second-degree CDS charge, the judge imposed a concurrent seven-year sentence.
On October 18, 2005, defendant filed the PCR application that is the subject of this appeal. He contended that the sentencing judge used aggravating factors to which he made no admission, and as a result he was sentenced to more than the presumptive term. This claim was later abandoned. Instead, counsel on defendant's behalf argued in a supporting brief that defendant "was denied his due process rights in that there was never a separate pre-sentencing hearing to determine whether his offenses actually were determined to be under the NERA."
The State urged that the PCR petition had to be filed by October 13, 2005, and, if the petition was filed thereafter, it was barred by R. 3:22-12. The State also argued that under R. 3:22-4 the issues could have been raised on direct appeal and thus were barred. On the merits, the State argued that the facts admitted at the plea allocution triggered application of NERA, because defendant admitted that he had a .25-caliber automatic pistol and nothing in the record suggested that it was inoperable. As a consequence, the State argued, no separate hearing was required.
The PCR judge made no ruling on the timeliness of the PCR petition because he could not determine from the record before him when it was filed. He concluded that the petition was not barred because the issues could have been raised on direct appeal. He determined that the hearing requirement of the version of NERA in effect in 1999 was satisfied by the defendant's own sworn testimony during the plea allocution, citing State v. Parolin, 171 N.J. 223 (2002). The judge accordingly denied the PCR petition. This timely appeal followed.
Defendant raises the following issues for our consideration:
POINT I THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS NOT TIME BARRED UNDER RULE 3:22-12 AND WAS NOT PROCEDURALLY BARRED UNDER RULE 3:22-4 BECAUSE THE DEFENDANT ESTABLISHED CERTAIN CRITERIA WHICH ALLOWED FOR A RELAXATION OF THESE RULES.
POINT II THE DEFENDANT WAS ENTITLED TO POST CONVICTION RELIEF BECAUSE HE WAS NOT AFFORDED A HEARING IN ACCORDANCE WITH THE NO EARLY RELEASE ACT PRIOR TO THE IMPOSITION OF AN 85% PAROLE INELIGIBILITY PERIOD.
Defendant obviously concedes that his PCR petition was not filed within five years of his sentence, but contends that it was nonetheless timely because his sentence was illegal and R. 3:22-12 provides that "[a] petition to correct an illegal sentence may be filed at any time." We have held that a challenge to the application of NERA involves "[a] question of sentence legality." State v. Hernandez, 338 N.J. Super. 317, 323 (App. Div. 2001). As a consequence, we find that the PCR petition was timely filed.
The State argues that the legality of the sentence could have been raised on direct appeal and it is thus barred. This statement is obviously correct, but we disagree with the conclusion. The various subparts of R. 3:22 must be read in pari material. R. 3:22-2 establishes the grounds on which a petition for PCR are cognizable. One of those grounds is "[i]mposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law." R. 3:22-2(c). "There is no time limit on the correction of an illegal sentence." Pressler, Current N.J. Court Rules, comment 3 on R. 3:22-2 (2007) (citing State v. Paladino, 203 N.J. Super. 537 (App. Div. 1985)). This view is corroborated by R. 3:22-12, which expressly states that there are no time limits on the review of a sentence claimed to be illegal. Thus, R. 3:22-4 does not bar our consideration of defendant's claim respecting application of NERA to his sentence.
The illegal-sentence issue arises in the context of the version of NERA in effect when defendant committed the offenses to which he pled guilty, i.e., between April 2 and November 14, 1999. Parolin, supra, 171 N.J. at 230, 233 (holding that the 2001 amendments to NERA should not be applied retroactively). That version became effective on June 9, 1997, and provided:
a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section.
d. For the purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon . . . .
e. A court shall not impose sentence pursuant to this section unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed. The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue. [N.J.S.A. 2C:43-7.2(a), (d), (e) (2000).]
Defendant asserts that the elements of a NERA violent crime must be determined by a jury beyond a reasonable doubt, relying on State v. Johnson, 166 N.J. 523, 543-44 (2001). He also points out that when "the elements of [an] offense charged against a defendant do not contain as an element proof of any one or more of the NERA factors, there must be proof of an independent act of force or violence or a separate threat of immediate physical force to satisfy the NERA factor," quoting State v. Thomas, 166 N.J. 560, 573-74 (2001). There must be an actual threat to use immediate force where serious bodily injury has not been inflicted. Id. at 576. A mere possibility of force standing alone is not sufficient. Ibid.
The Johnson requirement that a jury determine beyond a reasonable doubt that the NERA factors exist does not apply to a plea.*fn1 The Parolin Court specifically found that NERA's requirement of a hearing can be satisfied by the defendant's sworn testimony at a plea hearing. 171 N.J. at 231. Thomas, too, measured defendant's admissions at the plea hearing against the factors required for imposition of NERA and concluded that, where defendant did not admit one or more NERA factors, NERA could not be applied to his sentence. Thomas, supra, 166 N.J. at 563.
The issue before us is whether any of the elements of first-degree armed robbery proves any one or more of the NERA factors. If it does not, then we must determine whether defendant testified to one or more of the NERA factors. The elements of first-degree armed robbery are set forth in N.J.S.A. 2C:15-1:
a. A person is guilty of robbery if, in the course of committing a theft, he:
(2) Threatens another with or purposely puts him in fear of immediate bodily injury;
b. Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor . . . is armed with, or uses or threatens the immediate use of a deadly weapon.
In addressing this issue the Johnson Court specifically held that the elements of the NERA "violent crime" factor do not overlap completely with the elements of first-degree robbery, because a defendant could be convicted of first-degree robbery where the defendant threatens the victim and is armed with a deadly weapon but does not threaten the victim with the deadly weapon. [Johnson, supra, 166 N.J. at 545-46.]
Thus, we must examine the basis for the plea. Defendant testified that he had a weapon, a .25-caliber automatic pistol, in his possession during all three armed robberies and that he "pulled" the weapon on the victims on all three occasions. Further, he admitted that "by pulling out that weapon, and showing it to the [people] . . . whom [he] confronted, [he was] threatening them that [he would] use that weapon if they didn't comply with what [he] said." It is beyond peradventure that defendant "use[d] or threaten[ed] the immediate use of a deadly weapon," triggering application of NERA. N.J.S.A. 2C:43-7.2(d) (2000). Having admitted this factor, NERA was properly applied to his sentence.