On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 91-05-0667.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Espinosa.
Defendant appeals from the denial of his petition for post-conviction relief (PCR), filed in 2008, in which he argues that the sentence imposed on him in 1997 was illegal. We affirm.
In August 1990, defendant was incarcerated at New Jersey State Prison, serving sentences imposed for convictions arising from two separate indictments: a sentence of fifteen years with seven and one-half years minimum parole ineligibility for a 1984 robbery conviction, and an aggregate sentence of thirty years with fifteen years minimum parole ineligibility imposed in 1985 as concurrent terms for robbery and kidnapping convictions. Following a prison riot, defendant was one of seven inmates charged with offenses related to the riot. Defendant was convicted of two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) and N.J.S.A. 2C:2-6 (counts three and nine); and third-degree possession of weapons for an unlawful purpose, (count eighteen), N.J.S.A. 2C:39-4(d) and N.J.S.A. 2C:2-6.
Prior to sentencing in 1993, the State filed a motion seeking the imposition of an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a). It is undisputed that defendant was eligible for an extended term under this provision and that this motion was timely filed pursuant to Rule 3:21-4(e), which requires that such motion "shall be filed with the court by the prosecutor within 14 days of the entry of defendant's guilty plea or of the return of the verdict." The court granted the State's motion and imposed an enhanced term of ten years incarceration with a five year period of parole ineligibility on the third-degree aggravated assault conviction (count three). The court also sentenced defendant to terms of five years with two and one-half years period of parole ineligibility on counts nine and eighteen, such terms to run consecutive to each other, consecutive to the sentence imposed on count three and consecutive to the sentence defendant was serving at the time of these offenses.
Defendant appealed his conviction and sentence. In an unpublished opinion, State v. Whitfield, No. A-502-93T4 (App. Div. Apr. 21, 1997), we affirmed his conviction. However, we found error in the trial court's use of a 1981 presentence report that had not been updated. Therefore, we reversed the sentence and "remanded for re-sentencing after receipt of an appropriate presentence report which fully complies with the rules of court and the applicable statute."
At resentencing in 1997, defense counsel objected to the imposition of an extended term as follows:
In regard to sentencing, your Honor, since the entire sentencing process has been reversed and remanded, I am entering my objection to any imposition of an extended term since no new motion for extended term has been presented to the Court and the time has elapsed.
The court rejected this argument, noting that the prosecutor had moved for the imposition of an extended term at the time of the original sentencing and that the defendant was eligible for such sentencing as a persistent offender. N.J.S.A. 2C:44-3(a). The court again sentenced defendant to an extended term on count three, a term of ten years with a five-year period of minimum parole ineligibility. Sentences of five years with a two and one-half year period of parole ineligibility were imposed on counts nine and eighteen. The court ordered that the sentences on counts three and nine were to run consecutive to each other and to the sentence defendant was serving. The sentence on count eighteen was concurrent to those sentences.
Defendant appealed his sentence and the appeal was heard on an excessive sentencing calendar in November 2000. In addition to arguing that the presentence report relied upon was deficient, his defense counsel presented defendant's argument that the State was required to file "a new timely notice for an extended term" after the remand before defendant could be sentenced to an extended term. By order dated November 29, 2000, we affirmed defendant's sentence. State v. Whitfield, No. A-1101-99 (App. Div. Nov. 29, 2000), certif. denied, 168 N.J. 294 (2001).
Defendant filed this PCR petition on August 27, 2008, alleging that his sentence was illegal. The limited issue presented was that the court lacked the authority to sentence defendant to an extended term because the State failed to file a new motion for an extended term after remand. The court found that, under the circumstances presented, the defense had notice and was not surprised that the State was seeking an extended ...