On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1356.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Haas.
This excessive sentence appeal returns to us following a remand by the Supreme Court. In its March 29, 2012 order, the Court directed that we reconsider our prior determination of the jail and gap-time credits due defendant "in light of State v. Hernandez, 208 N.J. 24 (2011)." Based upon our review, we modify our prior decision concerning gap-time credits previously granted to defendant and remand to the trial court to enter an amended judgment of conviction to reflect this modification.
The essential background facts are not in dispute. On August 19, 2005, defendant was arrested for second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2b.*fn1
On May 22, 2006, defendant allegedly committed the offenses that are the subject of the present appeal. These offenses were conspiracy to commit armed burglary/robbery, N.J.S.A. 2C:5-2; first-degree murder, N.J.S.A. 2C:11-3a(1); first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was not arrested for these offenses at that time.
On July 13, 2006, defendant was arrested for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10.
On March 27, 2006, defendant pled guilty to the second-degree eluding charge, N.J.S.A. 2C:29-2b. On August 3, 2006, he pled guilty to the third-degree possession of CDS charge, N.J.S.A. 2C:35-10. He was sentenced to prison on both charges on August 3, 2006. The trial court sentenced defendant to five years in prison on the eluding charge and to a concurrent four-year term on the CDS charge. He was also required to pay mandatory fines and penalties. Defendant received twenty-two days jail credit on each of the charges.*fn2
While in prison, defendant was arrested on April 12, 2007 and charged with the offenses that allegedly occurred on May 22, 2006. After a jury trial, defendant was convicted of conspiracy to commit armed burglary/robbery, N.J.S.A. 2C:5-2; first-degree felony murder, N.J.S.A. 2C:11-3(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. He was acquitted of the other charges.
On March 6, 2009, the court sentenced defendant to an extended term of thirty years in prison with a thirty-year minimum term on the felony murder conviction; a concurrent ten-year term on the conspiracy conviction; and a concurrent twenty-year term with a ten-year minimum on his conviction for possession of a weapon for an unlawful purpose, into which the unlawful possession of a weapon conviction merged. Defendant was ordered to pay the required mandatory fines and penalties. He was granted 946 days jail credit from August 3, 2006 to March 5, 2009.
Defendant appealed his conviction and sentence. In an unpublished opinion, we reversed his conviction and remanded the matter for a new trial. State v. Smith, No. A-3701-08 (App. Div. July 14, 2010).
Rather than proceeding to a second trial, on October 22, 2010, defendant pled guilty to second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, and unlawful possession of a weapon, N.J.S.A. 2C:39-5b. On February 2, 2011, the trial court sentenced defendant to ten years in prison on the conspiracy conviction, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and to three years of parole supervision upon release. The court sentenced defendant to a concurrent five-year term, with two-and-one-half years of parole ineligibility on the unlawful possession of a weapon charge. Defendant received 699 days of jail credit from March 6, 2009 to February 1, 2011. He received 946 days gap-time credit from August 3, 2006 to March 5, 2009.
Defendant filed an excessive sentence appeal. In an October 6, 2011 order, we affirmed the sentence, finding that it was "not manifestly excessive or unduly punitive and [did] not constitute an abuse of discretion." However, we remanded the case "to the trial court for entry of an amended judgment of conviction to include gap-time credit ...