IAN BURTON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4149-04T34149-04T3

IAN BURTON,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent-Respondent.

________________________________________________

 

Submitted February 15, 2006 - Decided April 17, 2006

Before Judges Skillman and Payne.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

Ian Burton, appellant, filed a pro se brief.

Zulima V. Farber, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel and Christopher

C. Josephson, Deputy Attorney General, on

the brief).

PER CURIAM

Petitioner Ian Burton appeals from a final agency determination that a notation on his institutional face sheet that he is serving a seventy-one-year term with thirty-two years of parole ineligibility is correct. Burton claims instead that he is serving a fifty-eight-year sentence with twenty-nine years of parole ineligibility. We affirm.

Burton committed two series of crimes, one charged in I-95-02-213 and the other charged in I-95-06-984. On April 26, 1996, Burton was sentenced on I-95-02-213 to a total term of thirteen years in custody with a three-year parole disqualifier following convictions on weapons charges and a conviction for aggravated assault on a police officer. Upon appeal, errors were found in the sentence.

Following a plea of guilty, on May 9, 1997, Burton was sentenced on Count 2 of I-95-02-984 (armed robbery) to fifty years in custody with twenty-five years of parole ineligibility, consecutive to the sentence imposed on I-95-02-213; on Count 4 (attempted murder) to eighteen years in custody with a nine-year parole disqualifier, concurrent to Count 2 and to I-95-02-213; and on Count 5 (certain persons not to have weapons) to eight years in custody with a four-year parole disqualifier, consecutive to Counts 2 and 4 and to the sentence imposed on I-95-02-213. His total sentence was therefore seventy-one years in custody with a thirty-two-year parole disqualifier.

Following an appeal of charges under I-95-06-984, defendant's sentence on Count 4 was vacated, and resentencing was ordered because we found that a mandatory extended term pursuant to N.J.S.A. 2C:43-6(c) was required on that count, as well as on Count 2, and the existing sentence was therefore illegal. State v. Burton, No. A-6963-96T4 (App. Div. January 28, 1999), slip op. at 6-8.

A second sentencing hearing was conducted on February 11, 1999 with respect to both I-95-02-213 and I-95-06-984. When resentencing defendant on I-95-06-984, the judge only referred to Count 4, which was the sentence that required modification. In that regard, the judge imposed a custodial sentence of fifty years with a twenty-five-year parole disqualifier, concurrent to Count 2 and to I-95-02-213. However, the rest of the sentence remained unchanged. When resentencing defendant on I-95-02-213, the judge again imposed a total sentence of thirteen years with a three-year parole disqualifier. Amended judgments of conviction on the two indictments were filed on April 9, 1999. As a result of re-sentencing, Burton remained subject on I-95-06-984 to consecutive sentences of fifty years in custody with a twenty-five-year parole disqualifier on Count 2 and eight years in custody with a four-year parole disqualifier on Count 5, each of which was consecutive to the thirteen-year sentence with a three-year parole disqualifier imposed on I-95-02-213.

We suspect that Burton may not have recognized that during his resentencing on I-95-06-984, the sentencing judge limited his attention to Count 4, which was imposed concurrently to Burton's remaining sentences, and Burton may have erroneously concluded that the entire sentence on I-95-06-984 was imposed concurrently to the sentence on I-95-02-213. If that was Burton's conclusion, that conclusion is incorrect, as is any other conclusion resulting in the shorter sentence that Burton espouses. The consecutive sentences on Counts 2 and 5 of I-95-06-984 remain, and they continue to be imposed consecutively to the sentences on I-95-02-213.

We have carefully reviewed the transcript of the sentencing proceeding conducted on February 11, 1999 and the two amended judgments of conviction, and we are satisfied that the total sentence recognized by the Department of Corrections accurately reflects the directive of the sentencing judge.

Affirmed.

 

We were not supplied with a copy of the opinion on appeal in that matter.

(continued)

(continued)

4

A-4149-04T3

April 17, 2006