On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-12-2888.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2010 - Remanded Resubmitted June 21, 2011 December 13, 2010 June 24, 2011
Before Judges A.A. Rodriguez and Grall.
This appeal is before us following a remand for a resentencing after a hearing on imposition of consecutive sentences. State v. Parker, No. A-6010-08 (App. Div. Dec. 13, 2010) (slip op. at 11). We retained jurisdiction.
The judgment of conviction and sentence was entered on defendant's plea of guilty to five counts of an indictment alleging crimes all committed on October 27, 2007: third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; fourth-degree possession of prohibited hollow-point bullets, N.J.S.A. 2C:39-3f; fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1; and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. There was no plea agreement; the plea was "open" and left sentencing to the court's discretion.
At the time of his guilty plea, defendant testified that "[an] officer tried to stop me and when he asked me to stop I didn't stop. I kept going." He admitted that he "took off when cops were trying to stop [him]" and cut into a parking lot because he did not want the officer to find the handgun he had in the waistband of his pants. That handgun had a defaced serial number and was loaded with a clip that held three hollow-point bullets. He further acknowledged that he had a prior conviction for possession of a controlled dangerous substance with intent to distribute, a conviction which prohibited him from possessing a handgun.
During his pre-sentencing interview, defendant said he carried the gun for self-protection because he carried a lot of cash. He also said he kept going when the police officer asked him to stop because he knew he was wanted for attempted murder. There is nothing in the record indicating when defendant obtained the handgun he was carrying or that it was used in any crime. Moreover, defendant did not display or use the handgun during this episode; when an officer caught up to him, defendant knelt on the ground and raised his arms.
With that background, we discuss the sentences imposed. The judge merged defendant's conviction for possession of a defaced firearm (count two) with his conviction for unlawful possession of a handgun (count one). The sentences imposed on the remaining counts were as follows: a four-year term for unlawful possession of a handgun (count one); a fifteen-month term for possession of hollow-point bullets (count three); a fifteen-month term for obstructing the administration of law (count four); and a nine-year term for possession of a weapon by a convicted person, subject to a mandatory five-year term of parole ineligibility (count five). Prior to remanding, we affirmed those sentences.
Our remand required the judge to resentence and address the relationship between the various custodial terms - that is whether they were concurrent or consecutive. At the sentencing hearing and on the judge's statement of reasons for the sentences, the judge provided factual findings and a legal justification for imposing consecutive sentences for obstruction and the weapons offenses. He did not, however, provide any reasons for imposing consecutive sentences among the weapons offenses. Nevertheless, the judgment of conviction reflected consecutive sentences for two of the weapons offenses. Our remand was to permit the judge to articulate reasons for imposing consecutive sentences on the weapons offenses in light of the factors detailed in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 84 L. Ed. 2d 308 (1986).
In addition, there were inconsistencies between the sentences pronounced by the court at the sentencing hearing and as reflected in the judgment of conviction. At the time of sentencing, the judge said the fifteen-month sentence for possession of hollow-point bullets on count three was concurrent with the sentence on count two, but the judge had merged count two and not imposed any sentence on that count. In contrast, the judgment of conviction states that the sentence on count three is concurrent with the sentence on count one.
Moreover, at the time of sentencing, the judge said the fifteen-month sentence for obstruction on count four was consecutive to counts two and three. In contrast, the judgment of conviction states that the sentence for obstruction is consecutive to the sentences on counts one and three. This difference is significant. The sentence on count one is four years and the sentence on count three is only fifteen months. Thus, under the sentence on count four pronounced in court, which referred only to a merged count and count three, service of the sentence on count four would commence after fifteen months and be completed before the expiration of the four-year term on count one. In contrast, under the sentence for count four set forth in the judgment, which referred to counts one and three, service of the sentence on count four would not commence until the four-year term on count one was served. That discrepancy affected the commencement date of the nine-year term for possession of a firearm by a convicted person on count five. The judge imposed that sentence to run consecutive to all other sentences. Thus, if the fifteen-month sentence for obstruction is concurrent to count one, the maximum aggregate sentence would be thirteen years - four years on count one followed by nine years on count five. In contrast, if the fifteen-month sentence for obstruction is consecutive to count one, then the maximum aggregate sentence would be fourteen years and three months - four years on count one, followed by fifteen months on count four, followed by nine years on count five.
Adding further confusion, in responding to a question from defense counsel about the aggregate sentence, the judge said, "it's nine consec[utive] to a [fifteen]. . . . [T]en years, three months, five years parole ineligibility." An aggregate sentence of that duration would be consistent with the reasons the judge gave for imposing consecutive sentences but inconsistent with the sentences imposed at the sentencing hearing.
In his initial brief, defendant conceded a remand was needed to clarify the sentences. He did not argue that the record was sufficiently clear to amend the judgment of conviction to conform with the sentence pronounced in court. State v. Pohlabel, 40 N.J. Super. 416, 423 (1956).
On remand, the judge clarified his intention with respect to consecutive and concurrent sentences, addressed the Yarbough factors and, according to the amended judgment of ...