Submitted: December 3, 2014.
Approved for Publication December 22, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-08-1894 and 10-12-2796.
Joseph E. Krakora, Public Defender, attorney for appellant ( Mark P. Stalford, Designated Counsel, on the brief).
James P. McClain, Atlantic County Prosecutor, attorney for respondent ( John Santoliquido, Deputy Attorney General, of counsel and on the brief).
Before Judges ALVAREZ, WAUGH, and CARROLL. The opinion of the court was delivered by CARROLL, J.A.D.
[439 N.J.Super. 197] CARROLL, J.A.D.
Defendant Sherrone H. Robinson appeals from a sentence imposed pursuant to a negotiated plea agreement. He argues that two offenses to which he pled guilty should merge. The State agrees that merger of the two convictions is appropriate. Under the plea agreement, one offense
includes a higher maximum prison term, while the other carries a lower maximum term but a higher statutory period of parole ineligibility. This appeal calls upon us [439 N.J.Super. 198] to determine the proper sentence that results upon merger of the two offenses.
Defendant was charged in Indictment No. 10-12-2796 with third-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2. He was also charged in Indictment No. 11-08-1894 with second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count five); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count eight); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count nine).
On October 16, 2012, defendant pled guilty to counts two and three of Indictment No. 11-08-1894. Pursuant to the plea agreement, the State agreed to recommend that defendant be sentenced in the third-degree range to a four-year prison term on the burglary charge, and to a concurrent five-year prison term on the weapon offense. The burglary offense was subject to an eighty-five percent parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, while the weapon offense carried a mandatory minimum term of three years pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). In placing the plea agreement on the record, defense counsel indicated that defendant would thereby receive an aggregate five-year prison sentence, with a parole ineligibility period of three years, four months, and twenty-six days, which represented the NERA component of the four-year burglary sentence. The State also agreed to dismiss the remaining counts of the indictment.
On January 15, 2013, defendant pled guilty to Indictment No. 10-12-2796, pursuant to the State's agreement to recommend a concurrent three-year prison term. On February 15, 2013, the [439 N.J.Super. 199] court sentenced defendant consistent with the plea agreements on both indictments. The judgment of conviction (JOC) on Indictment No. 11-08-1894 reflects defendant received 168 days of jail credit, from May 27, 2011 to November 4, 2011, and from January 11, 2013 to January 16, 2013. The JOC on Indictment No. ...