April 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES A. DEROSE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-04-0470.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: March 17, 2010
Before Judges Cuff and Payne.
A jury found defendant James A. DeRose guilty of four counts of third degree theft by deception, N.J.S.A. 2C:20-4 (Counts One through Four); one count of second degree eluding, N.J.S.A. 2C:29-2b (Count Five); and one count of fourth degree resisting arrest, N.J.S.A. 2C:29-2a (Count Eight). Defendant was sentenced to an extended prison term of eighteen years with a six-year period of parole ineligibility on the eluding conviction. On direct appeal, we reversed the four theft by deception convictions, but affirmed the eluding and resisting arrest convictions. State v. DeRose, A-5714-05 (App. Div. Feb. 26, 2008) (slip op. at 28). Following remand, defendant was resentenced, pursuant to State v. Pierce, 188 N.J. 155 (2006), on the eluding charge*fn1 to a seventeen-year term of imprisonment with a five-and-one-half-year period of parole ineligibility. It is from this order that defendant now appeals.
On appeal, defendant raises the following arguments:
DUE TO PROCEDURAL AND SUBSTANTIVE DEFECTS IN THE RE-SENTENCING PROCEEDING, THE APPELLANT IS ENTITLED TO HAVE THE EXTENDED TERM VACATED, AND THE MATTER REMANDED.
A. The State Has Not Established That It Served The Motion For An Extended Term [on] Appellant's Trial Counsel And The Appellant Within Fourteen Days Of The Jury Verdict.
B. Appellant's 2008 Motion Should Have Been Considered As Being Uncontested Inasmuch As The State Failed To File A Response.
C. The Lower Court Misapplied State v. Pierce.
D. The Court's Failure To Afford Appellant His Right Of Allocution Mandates A Remand.
We vacate the sentence imposed and remand for resentencing consistent with the terms of this opinion.
The seventeen-year term of imprisonment for second degree eluding is a discretionary persistent offender extended term imposed pursuant to N.J.S.A. 2C:44-3a. Imposition of a such a term is initiated by the prosecutor. N.J.S.A. 2C:44-3. Rule 3:21-4(e) provides that the application shall be in the form of a motion filed with the court within fourteen days of the return of the verdict. The time for filing may be extended for good cause. Ibid.; State v. Reldan, 231 N.J. Super. 232, 235 (App. Div. 1989).
The jury returned its guilty verdict on April 5, 2006. The Union County Prosecutor filed a motion for an extended term on April 11, 2006. Defendant was sentenced on June 13, 2006, at which time the judge granted the State's motion and imposed an extended term. The only evidence that defendant was served with the motion is a letter in defense counsel's file dated May 1, 2006. Defendant does not contest his eligibility for extended term treatment. He does argue that the State departed from the mandatory procedural requirements prefatory to imposition of an extended term and seeks vacation of that term and imposition of an ordinary term of imprisonment.
This issue cannot be definitively resolved on this record. Whether the prosecutor complied with the procedural requirements associated with an extended term is fraught with issues of fact. At the January 16, 2009 resentencing proceeding, the State simply informed the court of its normal procedures. The State was unable to advise the court or defendant what it did in this case to comply with Rule 3:21-4(e). This issue should be resolved before any consideration of whether defendant may have been prejudiced by late notice of the State's intention.
Defendant also argues that the judge did not properly apply Pierce, supra, 188 N.J. 156, and did not afford defendant his right of allocution. We agree.
In Pierce, the Court altered the four-prong analysis for imposition of a persistent offender extended term announced in State v. Dunbar, 108 N.J. 80 (1987). Pierce, supra, 188 N.J. at 165-69. In order to avoid the Sixth Amendment judicial fact-finding problem identified in State v. Natale, 184 N.J. 458 (2005) (Natale II), the Pierce Court directed that protection of the public interest cannot be considered a separate condition to the trial court's decision to impose a discretionary extended term, but rather is a consideration or factor in fashioning the appropriate length of the base term. Id. at 170.
Here, while alluding to the revised Pierce standard, the judge still seemed to consider the need to protect the public as a condition precedent to imposing a discretionary term rather than an element or factor informing the length of the base term. For that reason, if the judge finds that defendant received timely notice, or the notice was delayed for good cause, or occasioned no prejudice to defendant, the judge must resentence defendant in conformance with the Pierce rule. Furthermore, defendant must be afforded his right to allocution. R. 3:21-4(b); State v. Tavares, 286 N.J. Super. 610, 616 (App. Div.), certif. denied, 144 N.J. 376 (1996).
The sentence is vacated and the matter is remanded for resentencing consistent with this opinion.