On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 91-11-01842.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2010
Before Judges Parrillo and Yannotti.
Defendant Clifford Lloyd appeals from an order entered by the Law Division on June 23, 2009, denying defendant's motion to correct what he alleges is an illegal sentence. We affirm.
Defendant was tried before a jury, which returned a verdict on October 29, 1993, finding him guilty of first degree robbery, N.J.S.A. 2C:15-1; third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). On or around November 8, 1993, the State filed a motion seeking the imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a). On February 9, 1994, the State filed another motion seeking imposition of an extended term sentence pursuant to N.J.S.A. 2C:43-6(c).
Defendant was sentenced on February 10, 1994. The trial court granted the State's motion for imposition of an extended term and sentenced defendant to an aggregate term of life imprisonment, with a twenty-five year period of parole ineligibility. Defendant appealed and we affirmed his conviction. State v. Lloyd, No. A-5680-93 (App. Div. Sept. 22, 1995).
In May 2009, defendant filed a motion pursuant to Rule 3:22-12 seeking to correct what he claims is an illegal sentence. The trial court issued a letter opinion dated June 23, 2009, in which it concluded that defendant's sentence is not illegal. The court entered an order dated June 23, 2009 denying defendant's motion. This appeal followed.
Defendant raises the following argument for our consideration:
THE EXTENDED TERM SENTENCE IMPOSED UPON APPELLANT BY THE TRIAL COURT WAS NOT IMPOSED IN ACCORDANCE WITH LAW. THUS, RENDERING IT ILLEGAL.
More specifically, defendant argues that the State failed to file its motion for an extended sentence within the time prescribed by the court rules. For the reasons that follow, we conclude that defendant's arguments are entirely without merit.
Here, the trial court found that defendant's sentence is not illegal. We agree. The record shows that defendant qualified for extended-term sentencing under both N.J.S.A. 2C:44-3(a) and N.J.S.A. 2C:43-6(c). The State's motion for an extended term under N.J.S.A. 2C:44-3(a) was filed within fourteen days of the jury's verdict as required by Rule 3:21-4, whereas the motion for an extended term under N.J.S.A. 2C:43-6(c) was not. Because N.J.S.A. 2C:44-3(a) authorized the sentence imposed here and the State's motion for an extended term sentence under that statute was timely, the sentence imposed was lawful.
We would reach the same conclusion even if N.J.S.A. 2C:43-6(c) was the only basis for imposing the extended term. Although the State's motion for imposition of an extended term under this statute was untimely, defendant was afforded the opportunity to contest the applicability of N.J.S.A. 2C:43-6(c). At the sentencing hearing, defendant's attorney did not dispute the fact that N.J.S.A. 2C:43-6(c) applied to offenses for which defendant was being sentenced, nor did he dispute the fact that defendant had a previous conviction involving the use or possession of a firearm. Thus, defendant was not prejudiced by the late filing of the motion.
Defendant contends, however, that he did not have notice that the State was seeking an extended term until February 9, 1994, when the State's second motion for an extended term was filed. However, the trial court sent a letter to defense counsel dated November 19, 1993, stating that the State had moved for an extended term and the motion was scheduled for February 10, 1994. The court stated that defendant's brief was due ...