On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 09-01-00222 and 09-03-00662 (Docket Nos. A-5851-09T1 and A-1505-10T2); Camden County, Indictment Nos. 08-12-3796, 08-10-3186, Acc. 09-08-2658, 09-07-2490, 08-09-2747, 10-04-1093, 08-09-2989, Acc. 08-07-2193, 09-05-1681, 09-05-1922, 09-04-1220, 09-05-1727, Acc. 09-02-771, Acc. 09-10-3427, 09-04-1557, 09-04-1639, Acc. 09-09-3238, Acc. 08-04-1278, 09-04-1427, 09-03-1039, Acc. 09-07-2499, Acc. 09-01-0142, 09-05-1876, 07-08-2521, 09-05-1650, 08-10-353, 08-05-1798, 07-02-0511 and 09-04-1561 (Docket No. A-0593-10T1).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Fasciale.
These back-to-back appeals, which we consolidate for purposes of this opinion, all implicate the same legal question: is a defendant eligible to apply for resentencing pursuant to the 2010 amendments*fn1 to N.J.S.A. 2C:35-7 if such defendant received a Brimage*fn2 waiver of an extended term or reduction of a mandatory minimum term under N.J.S.A. 2C:35-12? From our review of the record in these cases, we find that such a defendant is eligible to apply for resentencing, but the ultimate result of that reconsideration process is not determined by this opinion.
Defendant Robert W. Oliver (A-5851-09T1) was convicted of third-degree possession of a controlled dangerous substance (cocaine) within 1,000 feet of school property. N.J.S.A. 2C:35-7. In connection with an agreed-upon plea arrangement, the State waived a motion for enhanced sentencing under N.J.S.A. 2C:43-6(f) pursuant to the Brimage Guidelines. Oliver was sentenced to five years incarceration, with thirty-three months to be served before becoming eligible for parole.
Oliver appealed his sentence pursuant to Rule 2:9-11, and the matter was submitted as part of the Excessive Sentencing Oral Argument (ESOA) program. The ESOA panel heard the matter within one month following the effective date of L. 2009, c. 192. It issued an order for remand stating:
This matter is remanded to the trial court for reconsideration of the parole ineligibility bar in light of the amendments to N.J.S.A. 2C:35-7 that became effective on January 12, 2010, L. 2009, c. 192, § 1 (specifying four factors to be considered by the sentencing court in determining whether the parole ineligibility bar otherwise required by N.J.S.A. 2C:35-7(a) should be waived). Jurisdiction is not retained.
Pursuant to the mandate of the remand, the Law Division conducted a resentencing hearing in which it determined that because Oliver had been eligible for the imposition of a mandatory extended term under N.J.S.A. 2C:43-6(f), "the waiver of the parole ineligibility under the new statute does not kick into play because of defendant's prior record." Accordingly, the sentencing court imposed "the exact same sentence as was [previously] imposed," writing on the judgment of conviction: Motion for appellate remand denied. Sentence reaffirmed.
In July 2010, defendant Keith D. Clarke and twenty-eight others (A-0593-10T2) filed motions for resentencing pursuant to N.J.S.A. 2C:35-7a. The Law Division consolidated the matters and framed the common question as whether defendants who were the beneficiaries of waivers of extended terms under N.J.S.A. 2C:43- 6(f) are eligible to seek reconsideration of their sentences pursuant to revised N.J.S.A. 2C:35-7. The court indicated that [t]he defendants seeking reconsideration are those who were serving a mandatory minimum sentence on January 12, 2010, the date of the enactment of the amendments to N.J.S.A. 2C:35-7, and who were eligible at sentencing for an extended term sentence under N.J.S.A. 2C:43-6(f) on account of a previous conviction for distribution or possession with intent to distribute a controlled dangerous substance.
After considering the views of the parties, the court ruled that such defendants, because of the Brimage waivers, were not eligible to apply for reconsideration of their sentences under the 2010 statutory amendments. This appeal followed.
Defendant Rudell Anderson (A-1505-10T2) was convicted of third-degree possession of a controlled dangerous substance (cocaine) within 1,000 feet of school property. N.J.S.A. 2C:35-7. As part of a plea arrangement, the State agreed to a Brimage waiver of a mandatory extended term under N.J.S.A. 2C:43-6(f), and Anderson was sentenced to a five-year term ...