On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-09-1866.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2008
Before Judges Yannotti and LeWinn.
In May 2004, defendant faced charges under three separate Atlantic County indictments. Indictment No. 02-01-0018B charged defendant with nine separate offenses, namely: conspiracy, in violation of N.J.S.A. 2C:5-2; robbery, in violation of N.J.S.A. 2C:15-1; burglary, in violation of N.J.S.A. 2C:18-2; theft of property, in violation of N.J.S.A. 2C:20-3; possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4; unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5; aggravated assault, in violation of N.J.S.A. 2C:12-1(b); criminal restraint, in violation of N.J.S.A. 2C:13-2; and possession of a weapon by a convicted person, in violation of N.J.S.A. 2C:39-7. Indictment No. 02-09-1866BCP charged defendant with one count of second-degree robbery, in violation of N.J.S.A. 2C:15-1. Indictment No. 02-12-2510B charged defendant with possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-10; and possession of CDS with intent to distribute, in violation of N.J.S.A. 2C:35-5.
On May 19, 2004, defendant entered into a plea agreement on Indictment No. 02-01-0018B, whereby he pled guilty to third-degree burglary; all remaining counts of that indictment were to be dismissed, and the State recommended a five-year term of imprisonment concurrent to the sentence defendant was then serving, which was a ten-year sentence with a five-year parole ineligibility period.
On June 2, 2004, defendant entered into another plea agreement, whereby he pled guilty to the second-degree robbery charge in Indictment No. 02-09-1866BCP, and to the two CDS-related charges in Indictment No. 01-12-2510B. Pursuant to that plea agreement, the prosecutor was to recommend an eight-year prison term with a mandatory eighty-five percent parole ineligibility term pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery charge. This sentence was to be consecutive to the sentence defendant was then serving. On the drug charges, the State recommended a term of eight years concurrent to the robbery sentence and consecutive to defendant's then-current sentence.
At the June 2, 2004 plea hearing, the judge questioned defendant as to his understanding of the NERA consequences of his plea. Specifically, the judge asked defendant:
You understand that you would have to serve 85 percent of eight years before being eligible for parole, but that would be consecutive to the ten do five [defendant's then-current sentence], and that 85 percent of . . . eight years is approximately six years, nine months and 24 days. Do you understand that, sir?
Defendant responded in the affirmative.
At the conclusion of the plea hearing, defendant inquired of the court: "Do I get any credit . . . for being in the county?" The judge responded that defendant may be eligible for "[gap time] credits[,]" but advised defendant that it would "be up to probation and then, eventually, to parole." The judge stated that he would give defendant "whatever credits they write up for you."
On June 25, 2004, defendant was sentenced pursuant to the two plea agreements. At the outset, defendant raised a question as to the extent of his gap time credits. The judge noted that defendant's presentence report stated that he was entitled to 267 days' credit in gap time. The judge stated: "Whatever indictment or indictments that pertains to will of course be determined by the parole board ultimately, because they have ultimate responsibility as far as when [you get] out."
In sentencing defendant, however, the judge stated that the 267 days of gap time credit would apply to the five-year sentence on the third-degree burglary charge. In pronouncing sentence on the second-degree robbery charge, the judge again informed defendant: "You must serve 85 percent of that eight years or, roughly, six years, nine months, 24 days, before being eligible for parole."
On October 7, 2005, defendant filed a pro se motion to "correct an illegal sentence." Defendant contended that it was his understanding that the 267 days of gap time credit would be applied to his NERA parole ineligibility period on the second-degree robbery charge. Defendant argued that neither his attorney nor the court advised ...