On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 89-06-0354.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Messano.
This matter came before us in a prior appeal on defendant David Matto's challenge of a May 4, 1990 sentence as illegal. In a per curiam unpublished opinion, we recited the record as presented to us, but concluded we were unable to determine whether defendant's original plea agreement contemplated probation conditioned on a period of incarceration or only a period of incarceration due to the absence of transcriptions of the plea and original sentencing. State v. Matto, No. A-3597- 04T5 (App. Div. Jan. 31, 2007). We directed our Court Clerk to arrange for preparation and delivery of the requisite transcripts, provided the parties a further opportunity to file briefs after receipt, and directed resubmission of the appeal.
We are now in receipt of all relevant transcripts and supplemental briefs.*fn1 We are satisfied there is no merit to defendant's motion to vacate an illegal sentence.
We need not reiterate at length the procedural history of this case as it was set forth in our prior opinion. Suffice it to say that on November 6, 1989, defendant pled guilty to third- degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5), which carried a range of imprisonment from three to five years. N.J.S.A. 2C:43-6a(3). Since Judge James A. O'Neill could not legally impose the sentence contemplated by the plea bargain, 364 days in county jail, he explained at the December 21, 1989 sentencing why he was required to also impose a probationary term. Specifically, he informed defendant that the only way a person may be incarcerated other than for a term within the applicable range is where a sentence of imprisonment in county jail incidental to probation is imposed. See N.J.S.A. 2C:43-2b(2); State v. Hartye, 105 N.J. 411, 420 (1987).
Accordingly, the judge sentenced defendant to two years probation conditioned on serving 364 days in county jail. Defendant had already served 211 days so the court suspended the balance of the jail term, permitting defendant to be released the following day. Although the two-year probationary term was not part of defendant's plea bargain, the record is clear that he agreed to serve this sentence at the conclusion of his sentencing hearing in exchange for his immediate release, and that decision was made voluntarily and with representation of counsel.
The following is a recitation of the sentencing colloquy:
THE COURT: That's right. Well, this Court reviewed the pre-sentence report and I've considered the circumstances obviously of this case and I've considered the extent of his prior record, considered the need for deterring this defendant and others from violating the law. I'm aware of the fact that he may respond affirmatively to probation with conditions and therefore the sentence of this Court, on indictment 89-06- 0354, the fourth count, a charge of aggravated assault, which it indicates here is a third degree offense, he's placed on probation for two years subject to the usual terms of probation which will be read to him by his probation officer, with the condition that he serve 364 days, Cape May County jail, and he gets credit from May 26, 1989 through December 22, 1989, which would be tomorrow, . . .
THE DEFENDANT: [T]he probation for two years that was on there, I don't recall that being in the plea agreement.
THE COURT: Well, you see, there's something you don't understand. When you're dealing with a third degree crime, the ordinary sentence for a third degree crime of aggravated assault is three to five years and the mid point is four years. That's the presumptive sentence. The only way I can get down to a county jail sentence, which means 364 [days] or less is to put you on probation. That's the only way under the criminal code you can reach a county jail sentence for third degree crimes or second degree or first degree.
[PROBATION OFFICER]: He's asking that the balance of the time be suspended.
THE COURT: I'll tell you what I'll do. I generally try to carry out the plea bargains, but since he has 211 days in as of tomorrow, the Court will add a condition to the sentence I imposed. I'll suspend the sentence as of tomorrow, the balance of the sentence that requires him serving any further county jail time, so that means he has to stay till the 22nd, which is tomorrow, tomorrow he can be released, he can be released at 9 o'clock in the morning and any sentence by me can be appealed by the ...