STATE OF NEW JERSEY, Plаintiff-Respondent, v. SHERRONE H. ROBINSON, a/k/a PAUL R. GRANDISON, SHERRON H. ROBINSON, Defendant-Appellant.
DOCKET NO. A-5490-12T4
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
December 22, 2014
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION December 22, 2014 APPELLATE DIVISION
Before Judges Alvarez, Waugh, and Carroll.
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 Genеral, of counsel and on the brief).
The opinion of the court was delivered by
CARROLL, J.A.D.
Defendant Sherrone H. Robinson appeals from a sentence imposed pursuant to a negotiated plea agreement. He argues thаt two offenses to which he pled guilty should merge. The State
I.
Defendant was charged in Indictment No. 10-12-2796 with third-degree conspiracy to commit aggravated assault,
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 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 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 Novеmber 4, 2011, and from January 11, 2013 to January 16, 2013. The JOC on Indictment No. 10-12-2796 provides for 117 days of jail credit, from October 4, 2010 to January 22, 2011, and from January 11, 2013 to January 16, 2013.
Defendant appealed, and this matter was initiаlly placed on an Excessive Sentencing Oral Argument calendar.
On appeal before us, defendant renews the following arguments:
POINT I - THE SECOND DEGREE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CONVICTION MERGES WITH THE SECOND DEGREE BURGLARY CONVICTION. THE SENTENCE ON THE POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE CONVICTION S[H]OULD BE VACATED. (Not Raised Below)
POINT II - PURS[U]ANT TO THE DECISIONS IN STATE V. HERNANDEZ1 AND STATE V. RIPPY2 DEFENDANT IS ENTITLED TO ADDITIONAL JAIL CREDIT ON INDICTMENT NO. 10-12-2796. (Not Raised Below).
II.
The overriding principle of merger analysis is that “an accused [who] committed only one offense . . . cannot be punished as if for two.” State v. Tate, 216 N.J. 300, 302 (2013) (citing State v. Davis, 68 N.J. 69, 77 (1975)).
As such, merger implicates a defendant‘s substantive constitutional rights. Not only does merger have sentencing ramifications, it also has a measurable impact on the criminal stigma that attaches to a convicted defendant.
[Tate, supra, 216 N.J. at 302-03 (citations and internal quotation marks omitted).]
The Court in Tate applied this “preferred and more flexible standard,” and concluded that defendant‘s conviction for third-degree possession of a weapon for an unlawful purpose merged with his conviction for first-degree aggravated manslaughter. Tate, supra, 216 N.J. at 307. The Court noted that “[w]hen the only unlawful purpose in possеssing the [weapon] is to use it to commit the substantive offense, merger is required.” Id. at 312 (quoting State v. Diaz, 144 N.J. 628, 636 (1996)).
In the present case, because defendant‘s sole unlawful purpose in possessing the weapon wаs to use it in the burglary, the State concedes that the two convictions must merge. At issue, then, is the proper sentence that should attach to the merged convictions.
Relying on Tate, defendant argues that the second-degree possession of a weapon for an unlawful purpose conviction merges with his second-degree burglary conviction. Consequently, he contends that the proper sentence for the merged offenses is the four-year prison term imposed for the burglary, subject to a NERA eighty-five percent parole disqualifier. However, the State notes that while the parole ineligibility component of the burglary sentence exceeds the three-year minimum term for the
We find support for the State‘s position in State v. Dillihay, 127 N.J. 42 (1992). In Dillihay, the Court addressed the issue of the appropriate sentence to be imposed when a defendant‘s conviction for a lesser-degree school-zone offense that carried a statutory mandatory minimum prison term merged with a higher-degree narcotics-related offense having no minimum term. Id. at 44-45. In such instance, the Court concluded thаt the maximum sentence on the higher offense and the mandatory minimum sentence on the lesser offense both survive. Id. at 56.
Further, as one commentator has observed:
The appropriate rule is that the single offense for which defendant is found liable in the last analysis is the most serious of the offenses being merged, i.e. the one which provides the most severe sentence. Occasionally one aspect of a sentence for one of the offenses being merged will be more severe than that for the other offense and a second aspect will be less severe. In such a case, the mоre severe aspects of each sentence should survive merger.
[Cannel, New Jersey Criminal Code Annotated, comment 9 on
N.J.S.A. 2C:1-8 (2014-15).]
We find this logic persuasive. On the specific facts of this case, we conclude that imposing the more severe aspects of the sentence for each offense is consistent with the parties’ plea agreement. As noted, when the terms of the plea agreement were placed on the record, defense counsel stated that defendant would receive an aggregate five-year prison sentence. He would further be required to serve eighty-fivе percent of the four-year burglary sentence under NERA, or three years, four months, and twenty-six days, before being eligible for parole. In accepting the plea, the judge reviewеd these terms with defendant and asked if he understood them, to which defendant responded, “Yes.” We thus discern no prejudice to defendant, since the result we reach is precisely that which he bargained for.
Accordingly, the matter is remanded for correction of the JOC on Indictment No. 11-08-1894 to reflect that the conviction for possession of a weapon for an unlаwful purpose merges with the burglary conviction. On the merged convictions, the court shall modify defendant‘s sentence to a five-year term of imprisonment, of which four years shall be subjeсt to an eighty-five percent parole ineligibility period under NERA.
III.
The parties agree on the additional jail credits to which defendant is entitled. Accordingly, our remand further directs that the JOC on Indictment No. 10-12-2796 be amended to reflect an additional 162 days of jail credit from May 27, 2011 to November 4, 2011.
Remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION