NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2012
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 94-03-00456.
Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro of counsel and on the brief).
Stephanie Davis-Elson, Acting Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Davis-Elson, on the brief).
Before Judges Fuentes and Hayden.
Defendant Thomas Frederick appeals from the April 1, 2011 Law Division order denying his motion to correct an illegal sentence. For the reasons that follow, we reverse and remand to the trial court for further proceedings.
The record reveals that on October 6, 1995, a jury convicted defendant of five charges resulting from a carjacking in Jersey City, including counts of first-degree carjacking, N.J.S.A. 2C:15-2; first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree kidnapping, N.J.S.A. 2C:13-1b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The convictions stemmed from an incident in which defendant stole a van by threatening the owner with a handgun, then forcing her to accompany him for several blocks.
On May 21, 1996, the trial judge merged the charges of armed robbery and possession of a weapon for unlawful purposes, and granted the State's motion for an extended term under the Graves Act, N.J.S.A. 2C:43-6c, on the armed robbery charge. The judge sentenced defendant to fifty years with a twenty-year parole disqualifier on the armed robbery, a consecutive term of ten years with a five-year parole disqualifier on the kidnapping charge, a concurrent term of thirty years with a fifteen-year parole disqualifier on the carjacking charge, and a concurrent term of five years with a two-and-one-half years parole disqualifier on the weapons charge, resulting in an aggregate sentence of sixty years imprisonment with thirty-five years of parole ineligibility. We affirmed both the convictions and the sentence in an unreported decision, State v. Frederick, A-7156-95 (App. Div. Apr. 14, 1998), and the New Jersey Supreme Court denied defendant's petition for certification. 160 N.J. 475 (1999).
Subsequently, on August 6, 1999, defendant filed a petition for post-conviction relief (PCR), which the trial judge denied on May 11, 2000. Defendant appealed, arguing ineffective assistance of counsel, insufficiency of the evidence, unreliability of the victim's identification, and double jeopardy as grounds for reversal of his conviction. We affirmed in an unreported decision, State v. Frederick, A-5105-00 (App. Div. Dec. 17, 2002), and the New Jersey Supreme Court denied defendant's petition for certification. 176 N.J. 429 (2003). On February 5, 2004, defendant filed a petition for a writ of habeas corpus with the United States District Court, which was denied. Frederick v. Hendricks, No. 04-519(FSH) (D.N.J. May 31, 2006).
Several years later, on March 14, 2011, defendant filed a pro se motion to correct an illegal sentence pursuant to R. 3:22-12 and requested oral argument. On April 1, 2011, without requiring a response from the State or hearing oral argument, the trial judge issued a written decision, which denied defendant's motion, concluding, without discussion of the merger issue, that it was without merit and time-barred. This appeal followed.
On appeal, defendant raises the following argument for our consideration:
THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO CORRECT ...