On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-11-2654.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2011
Before Judges Fuentes, Gilroy and Nugent.
Defendant Shaune Cherry pled guilty to third degree possession with intent to distribute a controlled dangerous substance (CDS), cocaine, within 1,000 feet of school property, N.J.S.A. 2C:35-7, for which he was sentenced to five years imprisonment; and second degree certain persons not to have weapons, N.J.S.A. 2C:39-7, for which he was sentenced to a concurrent five-year term of imprisonment with five years of parole ineligibility. Defendant contends, and the State concedes, that because defendant had not been convicted of an offense that would have disqualified him from possessing a weapon under N.J.S.A. 2C:39-7, his plea and sentence on the weapons offense must be vacated. The parties disagree about whether the plea to the CDS offense also must be vacated. We conclude that the entire plea agreement must be vacated. Accordingly, we reverse and remand.
On June 27, 2008, defendant pled guilty to two counts of an indictment: third degree possession with intent to distribute a CDS within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count five); and second degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count nine). When the plea hearing began, defense counsel stated:
Mr. Cherry's prepared to enter guilty pleas to ... count nine and count five. One is possession of a weapon by a convicted person; the other is possession of CDS with intent to distribute within a school zone .... In return, the Prosecutor's agreed to recommend a five-year New Jersey State prison sentence, with a five-year period of parole ineligibility, concurrent on both counts, credits for time already served.*fn1
The prosecutor confirmed the plea agreement. When questioned by the court, defendant acknowledged that he was pleading guilty because he was guilty, he faced up to fifteen years in state prison, and the State agreed to recommend a five-year term with a five-year period of parole ineligibility on the weapons offense. To establish the factual basis for his plea to the weapons offense, defendant admitted that he possessed a .25 caliber handgun without a permit on the date of his arrest. When asked by the court if he had previously been convicted of possession of a CDS with intent to distribute, he answered in the affirmative. He informed the court he was convicted of that offense "[b]ack in like 2000." Contrary to those representations, defendant was not convicted of possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5, but instead was convicted of distributing, possessing, or dispensing a CDS within 500 feet of a public housing authority, N.J.S.A. 2C:35-7.1, an offense that does not disqualify a person from possessing a weapon under N.J.S.A. 2C:39-7.
On March 13, 2009, the judge sentenced defendant consistent with the plea agreement to five years imprisonment on the CDS offense, a concurrent five-year term of imprisonment with five years of parole ineligibility on the weapons offense, and imposed the requisite fines and penalties. The court dismissed the remaining counts of the indictment. On July 22, 2009, defendant appealed, raising the following issue:
DEFENDANT'S PRIOR CONVICTIONS FAILED TO SERVE AS A BASIS FOR THE CHARGE OF CERTAIN PERSONS NOT TO HAVE WEAPONS. CONSEQUENTLY, THE SENTENCE FOR THAT CHARGE WAS ILLEGAL AND MUST BE REVERSED.
On June 8, 2010, defendant's appeal came before us on the excessive sentencing calendar and we transferred the appeal to the plenary calendar.
Defendant contends that his sentence on the weapons offense should be vacated, but his sentence on the CDS offense should not. The State counters that the plea agreement should be vacated in its entirety and the ...