On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-12-1634.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011
Before Judges Axelrad and R. B. Coleman.
On December 12, 2001, an Ocean County grand jury returned Indictment Number 01-12-1634 charging defendant Dijon B. Peele with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one) and first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35- 5(a)(1), N.J.S.A. 2C:35-5(b)(1) (count two). The first-degree charge in count two was based on the reported finding of the Ocean County Criminalistics Investigation Unit (OCCIU) that the suspected CDS seized from defendant's person at the time of his arrest tested positive for cocaine with a "total weight" of 142.4 grams, which excluded the requisite five ounces (141.7 grams) for a crime of the first degree.
Following his indictment, defendant failed to appear for a scheduled status conference on July 23, 2002, and a bench warrant was issued for his arrest. Almost five years later, on June 7, 2007, he was arrested in Illinois for drug charges unrelated to the charges that were the subject of Indictment Number 01-12-1634 (the indictment) and in July 2008, defendant entered a plea of guilty to one of the offenses charged in Illinois. He was sentenced to an eight-year prison term in that state.
On February 27, 2009, defendant was transported from Illinois to New Jersey, pursuant to the Interstate Agreement on Detainers, N.J.S.A. 2A:159-1 to -15, to face the indictment in this case. At that time, defendant's original defense counsel (original counsel) filed a motion to dismiss the indictment on due process grounds. However, before that motion was heard, defendant agreed to enter a plea of guilty to count two of the indictment and the motion was withdrawn. At the plea hearing, on March 10, 2009, the prosecutor informed the court of the following understanding between the parties:
Your Honor, it's the State's understanding Mr. Peele will be pleading guilty on Indictment 01-12-1634 to Count 2, possession with intent to distribute a controlled dangerous substance, a first-degree crime.
In exchange for the defendant's guilty plea, the State will be recommending a sentence of 20 years to the custody of New Jersey State Department of Corrections, with an 81-month period of parole ineligibility. This sentence is pursuant to the Brimage guidelines. The defendant is mandatory extended term pursuant to those guidelines. The State will file the appropriate motion.
Furthermore, your Honor, the State will be seek[ing] a consecutive sentence to the sentence that Mr. Peele is currently serving in Illinois which my understanding is an eight-year sentence. The defendant does reserve the right to argue for a concurrent sentence to the Illinois sentence.
Additionally, the balance of the indictment as well as Summons S-2001-16521514, Count 1, and Motor Vehicle Summons S-139549 and 550 are to be dismissed at the time of sentence.
Your Honor, in Paragraph 21, the defendant has reserved the right to argue for a concurrent sentence. And the Court has indicated that it will strongly consider giving such a concurrent sentence.
During the court's examination of defendant, he acknowledged that it was his intention to plead guilty to count two of Indictment 01-12-1634, which charged a first-degree offense for which defendant could receive twenty years in prison. At that point, the prosecutor interjected: "Your Honor, 20 years would be the low end of the mandatory extended term, in my understanding. So that's what the plea offer we made was low end, mandatory extended term." The court then asked, "So without a plea agreement, he would be subject to 20 years to life; right?" to which the prosecutor answered "Yes."
Continuing with the allocution, the following exchange took place between Judge Francis R. Hodgson, Jr., and defendant:
[JUDGE]: So you understand that without a plea agreement, you would be subject to 20 years to life for a guilty plea to this charge? [DEFENDANT]: Yes. [JUDGE]: It's your understanding that there's a plea agreement between yourself, your attorney and the State pursuant to which the State will be seeking a Brimage, what is a so-called Brimage term of 20 years with 81 months without parole, consecutive to the sentence you are currently serving in Illinois.
Is that your understanding of what the prosecutor will be seeking? [DEFENDANT]: Yes. [JUDGE]: You also understand that the Court, myself, will determine whether or not you will get a consecutive or concurrent term, but that the term is going to be 20 years with 81 months. The question is whether it's going to [be] consecutive or concurrent, and that based on what the attorney has told me about this case, what I've indicated is that I'd be inclined to sentence you concurrently --[DEFENDANT]: Yes. [JUDGE]: -- to your sentence in Illinois, here on in there are going to be interstate detainers application. [DEFENDANT]: Yes. [JUDGE]: And that based on what I know about your case that I'd be inclined to sentence you concurrently. [DEFENDANT]: Yes.
Based on his examination of defendant, the judge found that there was a factual basis for the court to accept the plea as offered and that defendant had "freely, knowingly and voluntarily given up his right to trial by jury and ha[d] entered into a guilty plea which is based in part upon the terms of the plea agreement set forth in the plea forms and on the record."
The sentencing hearing was expedited so defendant could be returned to the custody of Illinois. Thus, on March 13, 2009, three days after defendant had entered his plea of guilty, the court imposed the twenty-year sentence in accordance with the plea agreement, with an 81 month period of parole ineligibility. As he had indicated he would, the judge ordered ...