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State v. Johnson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 9, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES JOHNSON, A/K/A WAYNE HEVALOW, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 03-08-1558 and 03-11-2110.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2008

Before Judges Wefing and Parker.

Defendant James Johnson, a/k/a Wayne Hevalow, appeals from an order entered on December 19, 2006 denying his motion for reconsideration of his sentence. We are constrained to affirm.

On February 22, 2005, defendant pled guilty on Indictment 03-08-1558 to one count of second degree aggravated assault SBI, N.J.S.A. 2C:12-1b(1); and on Indictment 03-11-2110, to one count of third degree absconding from parole, N.J.S.A. 2C:29-5b. On January 27, 2006, defendant was sentenced on Indictment 03-08-1558 to a term of five years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and on Indictment 03-11-2110 to a term of five years concurrent with the first indictment.

In the interim between defendant's February 2005 plea and January 2006 sentence, on August 22, 2005 he was sentenced by the federal court in Maryland to a term of 100 months as a felon in possession of a firearm, 18 U.S.C. § 922(g)(1).

According to defendant's pro se brief, he was led to believe by prosecutors, defense counsel and judges that his state and federal sentences would be served concurrently. Under federal law, however, a sentence commences when the person is received at a federal facility. 18 U.S.C. § 3585(a). The federal officials would not accept defendant into federal custody until his sentences on the state charges were completed. Unfortunately, we have not been provided with transcripts of defendant's pleas or sentences in either state or federal court to determine what, if any, arrangements were discussed to effect concurrent sentences.

In November 2006, defendant moved for reconsideration of his state sentence. The trial judge rendered a letter opinion on December 19, 2006 in which he concluded that the state court had no constitutional authority to transfer defendant to federal custody or to order how a federal sentence should be served. Judge Michael R. Connor was correct in that the state court has no authority over a federal sentence. Consequently, we are constrained to affirm.

Based upon the record before us, it appears that defendant must move in federal court to have the state and federal sentences run concurrently. Defendant should contact the attorneys who represented him in New Jersey and Maryland in an effort to resolve this issue. Defendant should include the transcripts of his pleas and sentences in state and federal courts, along with his written plea agreements.

Affirmed.

20080609

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