On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-12-502.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 7, 2010 - Decided Before Judges Baxter and Koblitz.
Defendant Richard DelCristo was sentenced to three years in prison as a result of pleading guilty to a violation of probation. The State subsequently moved to correct an illegal sentence. After granting that motion, the court resentenced defendant to five years in prison with an eighteen-month parole disqualifier. Defendant appeals that resentencing, arguing that the resentencing violated the Double Jeopardy clauses of the state and federal constitutions. U.S. Const. amend. V; N.J. Const. art. I, ¶ 11. We agree with defendant's argument. We remand for the vacating of the sentence imposed on December 10, 2009 and for the re-imposition of the sentence imposed on October 1, 2009.
Defendant entered a guilty plea to Warren County Accusation No. 2007-07-270 on July 5, 2007, admitting he committed the following crimes: on May 4, 2007, third-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count one); third-degree conspiracy to possess with intent to distribute marijuana, N.J.S.A. 2C:35-5(b)(11) and 2C:5-2 (count two); and three counts of fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(12), on April 23, 2007, April 25, 2007 and May 2, 2007 (counts three, four and five). On April 25, 2008, after the trial court merged count two into count one, defendant was sentenced to concurrent two year probationary terms on all counts with a special condition of 120 days in the county jail. The requisite fines and monetary penalties were imposed.
On the same date of April 25, 2008, defendant pled guilty to two counts of Warren County Indictment No. 2007-12-502 charging third-degree conspiracy to possess with intent to distribute marijuana on September 10, 2007, and third-degree possession with intent to distribute marijuana on the same date. The remaining two counts of the indictment named only co-defendant. On May 8, 2008, defendant received concurrent five-year probationary terms with the special condition that he attend and complete drug court.*fn1 The requisite fines and monetary penalties were imposed.
A handwritten notation in section thirteen of defendant's pre-printed plea form, which is allocated for the prosecutor to specify any sentence he or she has agreed to recommend, states: "State agrees to defendant's admission to Drug Court. If defendant is terminated from Drug Court - sentence would be Brimage sentence of 5 years w/18 months 'stip.'" See State v.Brimage, 153 N.J. 1 (1998) (where the Court found that plea-bargaining guidelines for drug offenses then in existence were inconsistent throughout the state and directed the Attorney General to develop uniform statewide guidelines, now known as the Brimage Guidelines).
On October 1, 2009, defendant pled guilty to violation of probation on both the indictment and the accusation, admitting that he had been found guilty of possession of marijuana on October 29, 2008, in Allentown City, Pennsylvania and that he failed to cooperate with treatment in that he left Damon House long-term in-patient treatment center without staff approval.
He was immediately sentenced to three years in prison. The prosecutor did not request a parole disqualifier.*fn2 On October 28, 2009, the State filed a motion to correct an illegal sentence, alleging the Brimage Guidelines term must be imposed. The trial court agreed with the State and resentenced defendant to the more severe sentence required pursuant to the Brimage Guidelines on both the accusation and the indictment.
On appeal defendant raises the following arguments:
THE JUDGE'S ORDER ENTERED ON DECEMBER 10, 2009, INCREASING DEFENDANT'S SENTENCE UNDER INDICTMENT 2007-12-502, WHICH WAS IMPOSED ON OCTOBER 1, 2009, VIOLATED PRINCIPLES OF DOUBLE JEOPARDY BECAUSE DEFENDANT HAD A LEGITIMATE EXPECTATION OF FINALITY IN HIS OCTOBER 1st SENTENCE.
IN SENTENCING DELCRISTO UNDER INDICTMENT 2007-12-502, THE TRIAL COURT ERRED IN FAILING TO MERGE HIS CONVICTIONS FOR CONSPIRACY TO POSSESS WITH INTENT TO DISTRIBUTE MARIJUANA AND ...