On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-05-686.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2009
Before Judges Winkelstein and Gilroy.
Defendant Bernardo Rivera appeals from two amended judgments of conviction entered on February 8, 2005, changing previously imposed concurrent sentences to consecutive sentences. We affirm the convictions; reverse and vacate the consecutive sentences; and remand to the trial court to enter corrected judgments of conviction reinstating the originally imposed concurrent sentences.
The facts are not disputed. On March 23, 2004, defendant was arrested for selling a controlled dangerous substance (CDS) (cocaine). On May 12, 2004, defendant was charged by a Middlesex County Grand Jury under Indictment No. 04-05-686 with third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (Count Three); and second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (Count Four).
On October 5, 2004, while again engaged in illegal drug activities, defendant was arrested in possession of a loaded handgun. On October 5, 2004, defendant was charged under a Middlesex County Accusation No. 04-01-230 with second-degree possession of a firearm while engaged in a CDS distribution related activity, N.J.S.A. 2C:39-4.1. On the same day, defendant entered into a negotiated plea with the State on the charges under both the Indictment and Accusation. Defendant pled guilty to Count Three of the Indictment and to the single charge under the Accusation. In exchange, the State agreed to recommend that any sentences imposed not exceed an aggregate imprisonment term of eleven years, that is, a consecutive sentence of four years on Count Three of the Indictment and seven years on the single-charge under the Accusation; and that any sentences imposed for violations of probation, pertaining to unrelated convictions, run concurrent.
On January 24, 2005, contrary to the plea agreement, the trial court sentenced defendant on the conviction for possession of a firearm to a seven-year term of incarceration, with a three-year period of parole ineligibility; and on the conviction of possession of a CDS with intent to distribute within 1,000 feet of a school, the court sentenced defendant to a four-year concurrent term, with a two-year period of parole ineligibility. Judgments of convictions were entered the same day.
On February 8, 2005, the court sentenced defendant for a violation of probation unrelated to the above convictions. Prior to announcing its sentence on the violation of probation, the court reconsidered the sentences imposed on the convictions on Count Three of the Indictment and under the Accusation. In so doing, the court reimposed the same sentence of seven years of imprisonment on defendant's conviction of second-degree possession of a firearm while engaged in a CDS distribution related activity under the Accusation. However, the court changed the terms on Count Three of the Indictment, imposing a four-year term of imprisonment, running that sentence consecutive to the sentence imposed on the Accusation, rather than concurrent. In addition, the court sentenced defendant to a concurrent four-year term of imprisonment on the violation of probation. Accordingly, defendant received an aggregate sentence of eleven years of imprisonment. The court entered amended judgments of conviction that day.
On appeal, defendant argues:
THE CONSECUTIVE SENTENCES IMPOSED ON THE DEFENDANT BY THE TRIAL COURT AT THE RE[-]SENTENCING PROCEEDING MUST BE VACATED AND THE ORIGINAL CONCURRENT SENTENCES MUST BE REINSTATED BECAUSE JEOPARDY ATTACHED TO THE ORIGINAL SENTENCES.
A. JEOPARDY ATTACHED TO THE DEFENDANT'S ORIGINAL SENTENCE WHEN HE BEGAN TO SERVE IT.
B. THE DEFENDANT HAD A REASONABLE EXPECTATION OF FINALITY IN HIS ORIGINAL SENTENCE, THEREFORE, THE INCREASED SECOND SENTENCE IMPOSED BY THE TRIAL COURT ...