On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this case, the Court addresses which offense should be the subject of an extended term sentence where a multiple count conviction is involved.
On November 2, 2001, in Union Township, seventy-five-year-old Lore Kraemer was attacked by a man crouching by the front wheel of her car. The man grabbed her arm and stole her purse, containing about $750. The man ran from the scene into an idling station wagon driven by defendant, Charles Thomas. The station wagon, which had been stolen a week earlier, drove off and was quickly pursued by police. In attempting to elude police apprehension, Thomas drove the station wagon at excessive speeds, ramming into other vehicles, including a police vehicle. Defendant drove through a red light, hit another, finally disabling the station wagon. Thomas and his passenger exited the car and ran in different directions. After a foot chase, Thomas was captured and arrested by police in a back yard some two blocks from where he had abandoned the disabled station wagon.
Thomas was convicted by a jury of second-degree robbery, second-degree eluding, third-degree possession of a weapon for an unlawful purpose, fourth-degree criminal mischief, fourth-degree resisting arrest, and third-degree receiving stolen property. Upon application of the prosecutor, Thomas was sentenced to an extended custodial term of eighteen years on the second-degree robbery conviction, subject to the No Early Release Act (NERA), and to a consecutive ten-year term, subject to five years of parole ineligibility, on the second-degree eluding conviction. The remaining counts were ordered to run concurrently and do not affect Thomas' sentence or the issues involved in this appeal. In the aggregate, Thomas was sentenced to twenty-eight years with 13.5 years of parole ineligibility.
Thomas appealed his convictions on numerous grounds. The Appellate Division reversed the robbery conviction, affirmed the remaining convictions, and remanded the matter for resentencing. The Supreme Court granted certification and reinstated the robbery conviction, affirmed the remaining convictions, and remanded for consideration of Thomas' sentencing arguments. The Appellate Division then remanded the matter to the trial court for resentencing while retaining jurisdiction.
The trial judge resentenced Thomas on the robbery count to an extended term of sixteen years, subject to NERA, and to a concurrent term of ten years, with five years of parole ineligibility, on the eluding conviction. The sentences on the remaining counts were made concurrent. As a result of the resentencing, Thomas was sentenced to an aggregate term of sixteen years with 13.6 years of parole ineligibility.
Thomas appealed and the Appellate Division reversed. Concerned about the length of Thomas' NERA sentence, the appellate panel revised the sentence downward by transferring the extended term from the robbery conviction to the eluding conviction. The panel reasoned that Thomas' involvement in the robbery as well as the robbery itself did not warrant as much condemnation as his conduct in eluding police. The panel therefore exercised original jurisdiction and sentenced Thomas to an extended term of sixteen years with eight years of parole ineligibility on the eluding conviction and a concurrent term of eight years, subject to NERA, on the robbery conviction. Thomas' revised aggregate sentence was sixteen years, with eight years of parole ineligibility.
The Supreme Court granted the State's petition for certification.
HELD: The extended-term-sentencing statute provides that a judge must place on the record his or her reasoning for applying an extended term to a different charge than that sought by the prosecutor. Therefore, this matter must be remanded to the trial court for an explanation of why it declined to accept the prosecutor's application to apply an extended term sentence to the eluding count and instead applied the extended term to the robbery count.
1. Because Thomas appealed his sentence and because his new sentence is not in excess of that originally imposed, double jeopardy is not implicated. (Pp. 3-5)
2. N.J.S.A. 2C:44-3 provides the criteria for extended term sentencing. Procedurally, the statute prescribes that a discretionary extended term may be imposed only on application of the prosecutor, with proper notice given to the defendant. Where multiple offenses are charged, notice should include an identification of the offense with respect to which the prosecutor is seeking an extended term in order to give the defendant fair opportunity to meet that claim. Because it is the prosecutor's choice whether to seek an extended term in the first place, it follows that the trial judge should give weight to the prosecutor's determination in respect of which offense is to be subject to an extended term. That selection is not dispositive, however. If the judge disagrees, he should so state, on the record, along with the reasons for the sentence, why he chose to apply an extended term to a different charge than that sought by the prosecutor. That statement will provide the Appellate Division with the foundation to determine whether the trial judge properly exercised his discretion. (Pp. 5-6)
3. Although the prosecutor made clear during the sentencing hearing that the second-degree eluding count was the focus of her extended term application, the trial judge imposed the extended term on the robbery count, which carried a NERA parole disqualifier. In neither the original sentence nor the resentence did the judge explain his reason for choosing the robbery count instead of the eluding count. Although the Court is sensitive to the appellate panel's desire to avoid a third resentencing procedure, the panel left itself open to the charge that it improperly substituted its judgment for that of the trial judge. Thus, a remand to the trial court for resentencing is required, at which time the trial judge should explain why he declined to accept the prosecutor's application to apply the extended term to the eluding count. (Pp. 6-8)
Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial judge for proceedings consistent with the ...