July 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VILKINGS ANDRE, A/K/A ANDRE VILKINGS, A/K/A GENE PIERRE, A/K/A JEAN PIERRE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 97-01-0121, 96-06-0718, 96-05-0706, 96-04-0465, and 96-02-0154; Accusation No. 97-05-0563.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 2, 2008
Before Judges Graves and Grall.
Defendant Vilkings Andre appeals from an order dated March 24, 2006, denying his petition for post-conviction relief. On appeal, defendant presents the following arguments:
THE MOTION FOR POST-CONVICTION RELIEF WAS NOT TIME BARRED BECAUSE THE COURT IMPOSED ILLEGAL SENTENCES.
THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO TRIAL BY JURY AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT BECAUSE HIS SENTENCE VIOLATED THE DICTATES OF STATE V. NATALE AND BLAKELY V. WASHINGTON. U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 8, 9, 10, 11.
THE MOTION COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION ON THE GROUNDS THAT THE DEFENDANT'S CASE WAS NOT IN THE "PIPELINE" AT THE TIME NATALE WAS DECIDED.
THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BASED UPON INEFFECTIVE ASSISTANCE OF COUNSEL AT THE DEFENDANT'S SENTENCING HEARING.
We are satisfied from our review of the record that Points II, III, and IV, do not warrant extended discussion in a written decision. R. 2:11-3(e)(2). However, we remand the sentence imposed on court two of Union County Indictment No. 96-05-0706, which charged defendant with third-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), for reconsideration.
On May 19, 1997, pursuant to a negotiated plea agreement, defendant entered guilty pleas to various charges in five indictments and one accusation. In return for defendant's guilty pleas, the State agreed to dismiss other charges and to recommend that: defendant would be sentenced to a thirty-year prison term with a fifteen-year period of parole ineligibility for an amended charge of first-degree aggravated manslaughter (count one of Indictment No. 97-01-0121); defendant would receive a consecutive five-year sentence for an amended charge of third-degree theft from a person (Indictment No. 96-02-0154); and concurrent sentences would be imposed on all other charges.
In addition to pleading guilty to first-degree aggravated manslaughter and third-degree theft from a person, defendant also plead guilty to the following charges: second-degree eluding (count one of Indictment No. 96-06-0718); third-degree possession of cocaine with intent to distribute (count two of Indictment No. 96-05-0706); third-degree unlawful possession of a firearm (Indictment No. 96-04-0465); and second-degree aggravated assault (Accusation No. 97-05-0563). In addition, prior to sentencing, defendant pled guilty to a violation of probation charge with the understanding that his sentence would be concurrent.
At sentencing on July 3, 1997, the court noted defendant had a "substantial" criminal record and it found that the aggravating factors substantially outweighed the nonexistent mitigating factors. The court also noted that defendant "committed the most despicable of all crimes" because he "participated in causing the death of another man." Defendant was sentenced in accordance with his plea agreement to a thirty- year prison term with a fifteen-year period of parole ineligibility for aggravated manslaughter, and he received a consecutive five-year term for theft from a person. All of the other sentences, including a five-year sentence with a three- year period of parole ineligibility for third-degree possession of cocaine with intent to distribute, were concurrent.
Defendant appealed his sentence, and the matter was placed on a sentencing calendar. R. 2:9-11. During oral argument, defendant's counsel claimed that the second-degree robbery charge, which had been downgraded to third-degree theft from a person, "was essentially a chain snatch," and defendant "should have received the presumptive term on that offense."
Defendant's attorney also argued that defense counsel should have presented mitigating factors at the time of sentencing:
"For example, [defendant] was a high school graduate, and he turned himself in on the final and most serious offense, which was the homicide." In response, the State argued that defendant received the "sentence that he expected from his plea agreement." On February 9, 1998, we determined that defendant's sentence was "not manifestly excessive or unduly punitive," and we affirmed.
Defendant's petition for post-conviction relief was filed on February 14, 2005, and argued on March 24, 2006. In denying defendant's petition, the court found that he was not entitled to be resentenced under State v. Natale, 184 N.J. 458 (2005), and the court concluded that defendant was not denied effective assistance of counsel:
Taken in its totality, the services rendered by trial counsel do not fall below a standard of reasonableness that an attorney practicing in the field of criminal law is required to . . . meet. There is no evidence of a deficiency in the role of trial counsel, and there is certainly no evidence that but for counsel the results would have been different. It seems to me that but for counsel the results may have been far worse.
For the most part, we concur in the trial court's analysis.
There is one aspect of defendant's sentence that requires clarification, however. Defendant alleges the three-year period of parole ineligibility imposed on count two of Indictment No. 96-05-0706, which charged defendant with third-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), is illegal. In rejecting this claim, the PCR court stated:
The sentence on Indictment 96-05-706, five years in state prison with a three year period of parole ineligibility for possession of a controlled dangerous substance with intent to distribute does not exceed the maximum permitted by the statute. This sentence was imposed under [N.J.S.A. 2C:43-6(f)] which is a mandatory extended term for a second C.D.S. offense and the sentence of five with a three under the statute falls within the permitted range of sentencing under that section of the code, thus the sentence was not illegal.
N.J.S.A. 2C:43-6(f) provides in pertinent part as follows:
A person convicted of . . . possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S. 2C:35-5, . . . who has been previously convicted of . . . distributing . . . a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court. The term of imprisonment shall, except as may be provided in N.J.S. 2C:35-12, include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, not less than seven years if the person is convicted of a violation of N.J.S. 2C:35-6, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.
The court shall not impose an extended term pursuant to this subsection unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish the ground therefor by a preponderance of the evidence. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.
For the purpose of this subsection, a previous conviction exists where the actor has at any time been convicted under chapter 35 of this title or Title 24 of the Revised Statutes or under any similar statute of the United States, this State, or any other state for an offense that is substantially equivalent to N.J.S. 2C:35-3, N.J.S. 2C:35-4, N.J.S. 2C:35-5, N.J.S. 2C:35-6 or . . . ([N.J.S.] 2C:35-7).
Thus, if defendant was sentenced as a repeat drug offender, his sentence for third-degree possession of cocaine with intent to distribute was not illegal because N.J.S.A. 2C:43-6(f) provides for a term of parole ineligibility "fixed at, or between, one-third and one-half" of the base term, but not less than three years for a third-degree offense. Defendant contends, however, that no hearing was held "to determine whether there existed a prior conviction" as required by N.J.S.A. 2C:43-6(f). Moreover, our review of the record confirms that there was no mention of an extended term sentence during either the plea hearing on May 19, 1997, or at sentencing on July 3, 1997. Under these circumstances, this aspect of defendant's sentence must be reconsidered and clarified by the trial court.
The order denying defendant's petition for post-conviction relief is affirmed, but the sentence imposed on Indictment No. 96-05-0706 is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
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