On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-03-0226.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 5, 2011 --
Before Judges Payne and Hayden.
Defendant, Jama Smith, was convicted in 2004 of nine counts of a twelve-count indictment. He was sentenced as follows: Count One (third-degree possession of a controlled dangerous substance (CDS)) and Count Two (third-degree possession with the intent to distribute) were merged into Count Three (third-degree possession of CDS with the intent to distribute it within 1000 feet of a school). Defendant was given an extended-term sentence on Count Three, pursuant to N.J.S.A. 2C:43-6f, of ten years with five years of parole ineligibility. On Count Seven, third-degree resisting arrest, he was given a concurrent five-year sentence. On Count Eight, second-degree possession of a weapon for an unlawful purpose, the judge stated at the sentencing hearing that he was imposing an extended-term sentence of twenty years with ten years of parole ineligibility, pursuant to N.J.S.A. 2C:43-6c and 2C:44-3d, consecutive to Count Three. However, the judgment of conviction (JOC) states that the sentence was concurrent to that count. On Count Nine, third-degree unlawful possession of a weapon, defendant was sentenced to a concurrent term of five years. On Count Ten, second-degree possession of a weapon while committing a CDS offense, defendant was sentenced to ten years in custody with a five-year period of parole ineligibility, consecutive to Count Three and concurrent to Counts Eight and Nine. On Count Eleven, fourth-degree possession of a defaced firearm, defendant was sentenced to eighteen months in custody consecutive to Count Three and concurrent to Counts Eight, Nine and Ten. And finally, on Count Twelve, possession of a weapon by a convicted felon, he was sentenced to ten years in custody with a five-year period of parole ineligibility consecutive to Counts Three, Eight, Nine and Ten. However, the JOC omitted the parole ineligibility period. It also incorrectly stated defendant's aggregate sentence as "40 - 15 years."
Defendant appealed, and we remanded for reconsideration of the entire sentence under State v. Natale, 184 N.J. 458 (2005) and for reconsideration of the consecutive sentence on Count Twelve. State v. Smith, No. A-28-05 (App. Div. October 17, 2007). The Supreme Court granted certification, limited to the charge of possession of a defaced firearm, and it affirmed the conviction. State v. Smith, 197 N.J. 325 (2009).
In the meantime, the resentencing that we had ordered took place on
October 3, 2008. Following argument, the judge stated that he
"impose[d] the same sentence that I imposed back on November 12th,
2004 for the same reason as stated on the record at that time."
However, he also stated in connection with Count Eight that he imposed
a sentence of "20 years in the custody of the Commissioner of the
Department of Corrections, minimum
period [of] parole ineligibility 10 years . . . . Sentence is to run
concurrent with Count Three of the indictment." The JOC reflected the
concurrent nature of the sentence on Count Eight. The judge also
omitted the mandatory five-year period of parole disqualification on
Count Twelve in his oral statement of defendant's sentence, and that
parole ineligibility period does not appear on the JOC.*fn1
The 2008 JOC, as had the 2004 JOC, listed the total custodial
term as "40 - 15 years."
In December 2008, defendant again appealed. While his appeal was pending, the Chair of the Parole Board sent a letter to the Presiding Judge for the Criminal Division in Passaic County stating:
The Judgment of Conviction (see attached) issued in this matter indicates that the aggregate sentence imposed is 40 years with 15 years parole ineligibility. Also, in a Superior Court - Appellate Division decision issued on October 17, 2007 the court noted the aggregate sentence to be 40 years with a 15 year parole ineligibility term.
Based on the language reflected on the Judgment of Conviction as to how the respective sentences are to be served in relation to each other, the State Parole Board staff is unable to confirm the aggregate sentence being 40 years with a 15 year parole ineligibility term. In the opinion of staff, the aggregate sentence is 30 years with a 10 year parole ineligibility term. This aggregate term is based on the sentences imposed on Counts #3, #10, and #12.
The Board sought direction from the sentencing judge as to the correct sentence.
An additional sentencing hearing was conducted on May 14, 2010 while this appeal remained pending. At that time, the State argued that, in 2004, a mistake had been made on the JOC with respect to Count Eight, which had been termed a concurrent sentence, when in fact the judge had ordered that it be consecutive to the sentence on Count Three. If that sentence were deemed consecutive, then a aggregate sentence of forty years with a twenty-year parole disqualifier would have been imposed. The mistake in the consecutive nature of the sentence on Count Eight and the aggregate sentence, contained in the 2004 JOC had been perpetuated thereafter. The judge agreed with the State's position and declared the lower sentence set forth on the 2004 and 2008 JOCs to have been the result of clerical error. Defendant thereupon amended his notice of appeal to reflect his objection to the 2010 sentence.
On appeal, defendant makes the following arguments ...