July 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MOINDOLA MASSAQUOI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-05-334-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 6, 2008
Before Judges Coburn and Fuentes.
Defendant Moindola Massaquoi appeals from the judgment of the Law Division sentencing him to serve sixty days in the county jail for violation of N.J.S.A. 39:3-33, possession of fictitious plates. We reverse and remand for re-sentencing.
Defendant was originally charged with fictitious motor vehicle plates, N.J.S.A. 39:3-33, driving without insurance, N.J.S.A. 39:6B-2, unregistered motor vehicle, N.J.S.A. 39:3-4, and parking within 50 feet of a stop sign, N.J.S.A. 39:4-138(h). Arising out of the same core of operative facts, defendant was also indicted for the fourth-degree offense of displaying or exhibiting simulated motor vehicle documents, N.J.S.A. 2C:21-2.3(b).
When the matter came before the Law Division, defendant entered into a negotiated plea agreement with the State, through which he pled guilty to the disorderly persons offense of possession of simulated motor vehicle documents, N.J.S.A. 2C:21-2.3(c), as a lesser included offense, as well as to all of the Title 39 offenses, except the parking charge, which the State agreed to dismiss. The plea agreement, presented before the Law Division, specifically limited defendant's penal exposure to a non-custodial probationary sentence, with community service, and the statutory fines and penalties.
On the date of sentence, defendant appeared before a different Law Division judge, who, despite the terms of the plea agreement, sentenced defendant to serve a term of sixty days in the county jail. The court noted that it was imposing the custodial sentence for the motor vehicle offense of fictitious plates, which authorizes the imposition of a fine not exceeding $500 or imprisonment in the county jail for not more than sixty days. N.J.S.A. 39:3-33. The sentencing judge made the following statement as a basis for his decision.
The jail sentence is imposed because your driving record demonstrates categorically a total lack of regard for the motor vehicle laws and the responsibilities which you assume along with the privilege of operating a motor vehicle in this State. In less than six and a half years you have accumulated 22 moving violations, numerous administrative violations, six failures to appear, numerous failures to pay surcharges and sundry other violations of the Motor Vehicle Act and the administrative regulations of the Motor Vehicle Services Commission.
There is no doubt in my mind, Mr. Massaquoi, that without getting your attention, which I hope 60 days in the County Jail succeeds in doing, you are just going to go on about your business driving hither, fither (sic) and yon without insurance and with fictitious plates and endangering the citizens of the State of New Jersey. If it doesn't get your attention, then at least for the next 60 days those citizens will not be endangered.
Thereafter, believing he was acting as a municipal court judge when he imposed the part of the sentence that involved the Title 39 offenses, the Superior Court judge advised defendant that he had twenty days to appeal, presumably to the Law Division. The judge concluded by admonishing defendant that if he did not appeal within that time period, his right to appeal "the motor vehicle summonses w[ould] forever be lost." He then advised defendant that he had forty-five days to appeal the sentence imposed for the disorderly persons offense. Again, although not expressly stated, we assume the judge believed that an appeal from the disorderly persons offense would be filed in the Appellate Division.
From this point, the matter takes an even more procedurally bizarre turn. Four months later, defendant's appeal from the sixty-day jail sentence imposed by the Superior Court judge on the Title 39 offense of fictitious plates, is docketed in the Law Division as an appeal from a court of limited jurisdiction under R. 3:23-8. More astoundingly, the matter then comes for adjudication before the same Superior Court judge who imposed the original sentence.
What occurred next was manifestly improper. The Superior Court judge heard the appeal from himself, and, not surprisingly, found nothing improper about the sentence. Neither defense counsel nor the assistant prosecutor appearing for the State objected to or raised any concerns about this process.
Defendant now appeals raising the following arguments.
THE SENTENCE ON THE FICTITOUS PLATES VIOLATION WAS EXCESSIVE AND UNJUSTIFIED.
DEFENDANT WAS DENIED IMPROPER (SIC) REVIEW OF HIS SENTENCE WHERE THE SENTENCING JUDGE PRESIDED OVER THE SENTENCE APPEALED.
(Issue Not Raised Initially).
We will first address the argument raised in Point II. We are satisfied that the trial court erred in initially considering defendant's case as requiring two separate sentencing considerations, one exclusively affecting the Title 39 offenses, and another dealing with the Title 2C disorderly persons offense. Here, the case came before the Superior Court by way of the indictment returned against defendant, charging him with a fourth-degree offense.
For purposes of judicial economy, and, from the State's perspective, in order to avoid a possible double jeopardy problem, the State selected to enter into a plea agreement with defendant that covered all of the outstanding Title 39 charges, as well as the Title 2C offense. In this context, the Superior Court judge who accepted defendant's guilty plea pursuant to the agreement reached with the State had the authority to hear and adjudicate the entire matter. When the case came before the Superior Court for sentencing, the sentencing judge was functioning in the capacity of a Superior Court judge, and had complete authority to sentence defendant according to law. An appeal from the sentence imposed in that procedural context is taken to the Appellate Division pursuant to R. 2:2-3(a)(1).
Here, the error made by the court was compounded by the Superior Court judge's decision to hear defendant's appeal from his own sentence. This approach converted defendant's right to obtain an independent, impartial review of the sentence imposed into a mere motion for reconsideration, with all of its concomitant limitations. See R. 3:21-10. The process employed here was facially improper and cannot stand.
That being said, we will next consider defendant's argument concerning the sentence itself. It seems clear to us, that the trial court violated the explicit non-custodial term of the plea agreement when it sentenced defendant to serve sixty days in the county jail for having fictitious plates. As noted earlier, when the State negotiated and agreed to this plea bargain, it included all of the pending charges against defendant. There is no basis to find that the Title 39 offenses were not covered by the non-custodial clause. Indeed, the plea agreement called for the dismissal of one of the Title 39 charges.
In this light, we are bound to remand this matter to the trial court for either re-sentencing consistent with the plea agreement, or rejection of the plea. State v. Saperstein, 202 N.J. Super. 478, 483 (App. Div. 1985). If the court rejects the agreement, defendant may retract his guilty plea, renegotiate a new plea agreement with the State, or stand for trial.
Reversed and remanded.
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