On appeal from the Superior Court of New Jersey Law Division, Cape May County, Indictment No. 98-12-0581.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued on the March 3, 2008
Sentence Oral Argument Calendar
Before Judges Stern and C.L. Miniman.
Defendant appeals from his resentencing on March 15, 2007, to twenty years with ten years to be served before parole eligibility, effective January 14, 2000, for first degree aggravated sexual assault of his eleven-year old daughter. The negotiated plea in January 2000 included a recommendation of a thirteen year custodial sentence with the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), to apply. However, this was a pre-June 29, 2001 offense, and the parties subsequently agreed that NERA did not apply in the absence of a factual basis therefor.
Defendant moved to vacate the NERA ineligibility term.*fn1 The parties agreed that NERA did not apply, but defendant did not seek to vacate his guilty plea because, according to the defense counsel, "this plea in 2000 took care of a lot of different situations" which defendant did not want to resurrect. Accordingly, instead of seeking to withdraw his plea,*fn2 defendant negotiated a new plea agreement for a twenty-year custodial sentence with ten years to be served before parole eligibility. According to defense counsel, the new agreement provided "a fair resolution" because it placed "parole eligibility at essentially within a month or two of the same maximum that he would [have] got[ten] under NERA." Rather than risk vacation of the plea and resurrection of all charges, defendant "decided to take the [twenty], do ten."
Defendant expressly indicated his "decision . . . to accept the modified sentence and be resentenced to the [twenty], do ten with credit for time served." He also expressly acknowledged his understanding that his "options" included "completely vacat[ing] [the] plea and proceed[ing] to trial," but elected to be "resentenced under [the] new sentencing agreement" of twenty years imprisonment with ten years to be served before parole eligibility.
On March 15, 2007, the judge imposed the amended sentence "as agreed to [by] the defense and the State by committing [defendant] to the custody of the Commissioner of the Department of Corrections for a term of twenty years, subject to ten years of parole ineligibility."
The sentence as originally imposed was illegal, and an illegal sentence can be corrected at any time. See R. 3:22-12. Defendant expressly declined to exercise his right to withdraw his guilty plea before the increased specific-term sentence was imposed. Having been afforded the right to withdraw his plea, the negotiated legal sentence could be imposed. See State v. Hernandez, 338 N.J. Super. 317, 323 (App. Div. 2001).