On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-09-0452.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Stern and Sabatino.
In 1999, defendant Christopher Tokley was charged with numerous offenses in two separate indictments (No. 99-04-0186 and No. 99-09-0452) filed in Burlington County. Pursuant to a plea agreement, defendant subsequently pled guilty on February 25, 2000 to a count of first-degree armed robbery, N.J.S.A. 2C:15-1a(2), in Indictment No. 99-09-452, and also to an amended count of third-degree theft from a person, N.J.S.A. 2C:20-3a, in Indictment No. 99-04-0186.
As part of the plea agreement, the State agreed to recommend that defendant's sentence on the robbery not exceed twenty-five years, with an eighty-five percent period of parole ineligibility, pursuant to the then-existing version of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The State further agreed to recommend a sentence of four years flat for the theft offense, to run concurrent with the sentence imposed for the robbery. The State also agreed to dismiss the four remaining counts of Indictment No. 99-09-0452, which had charged assorted weapons offenses.
In pleading guilty to the robbery, defendant admitted to the trial court that he and another person had gone to a Texaco station in Willingboro on September 6, 1999 "[t]o go see if we could find somebody to rob... [.]" In responding under oath to questions from his attorney about the underlying facts, defendant specifically acknowledged that he had carried to the Texaco station "an operable handgun," and that the weapon was "a working handgun that could actually fire a bullet[.]"
The prosecutor and defense counsel each stated on the record at the plea hearing that the State was recommending a sentence on the robbery that would include the eighty-five percent parole disqualifier. It was noted that defendant's prior criminal record already included a weapons-related conviction under the Graves Act. It was also noted that, because of his prior record, defendant was exposed to an extended term of up to life in prison, but that the State was instead recommending a twenty-five-year term.
Defendant assured the trial court that he had gone over the plea form with his attorney, that he understood its terms, and that he was entering his plea voluntarily. He expressed no confusion at that time about the eighty-five percent parole ineligibility factor, nor any disagreement with its applicability in this case.
Thereafter, on April 7, 2000, defendant appeared with his counsel for sentencing. At that time, defense counsel reiterated that he had discussed with defendant that he was subject to an eighty-five percent parole disqualifier on the robbery sentence "because of the fact that a weapon was used and it's a first[-]degree crime and there were obvious threats of violence."
Consistent with the plea agreement, the trial court sentenced defendant to a twenty-five-year term on the robbery conviction, subject to the eighty-five percent NERA parole disqualifier, plus a concurrent four-year term on the theft offense. As the court was imposing the sentence and explaining why the NERA provision applied, defendant interrupted and stated, "I would like to say the gun [I possessed] was not functional. It had no bullets. It had no revolver [sic]." The court found these assertions inconsequential, noting that the victim "at whose head it [the gun] was pointed had no clue" that it allegedly had no bullets in it or had no revolver mechanism.
Defendant filed a direct appeal of his sentence, which was argued on the Sentence Oral Argument calendar in January 2001. Through his counsel, defendant argued that he should not have been treated as a second-time Graves Act offender, and that his sentence on the robbery should have been less than twenty-five years. We remanded the matter to the trial court for resentencing and to examine the pertinent Graves Act implications.
At resentencing in February 2002, the trial court found that defendant was indeed properly treated as a repeat Graves Act offender. The court accordingly reimposed the twenty-five-year prison term. However, defendant's period of parole ineligibility was altered because of case law developments arising during the interim between the April 2000 sentencing and the February 2002 resentencing. In particular, the parties agreed that case law now precluded the NERA parole disqualifier from applying to that portion of defendant's sentence, i.e., five years, which exceeded the maximum regular sentence of twenty years for the first-degree robbery. See State v. Andino, 345 N.J. Super. 35, 38-39 (App. Div. 2001). Consequently, with the acquiescence of both sides, the trial court directed that the eighty-five percent parole disqualifier only applied to the first twenty years of defendant's twenty-five-year sentence, and not to the additional five years representing an extended term.
Defendant thereafter moved on various grounds for reconsideration of the trial court's resentencing disposition. The trial court denied that motion on the papers, in an order and ...