STATE OF NEW JERSEY v. BERNARDO RIVERA

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5324-05T45324-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BERNARDO RIVERA,

Defendant-Appellant.

____________________________

 

Submitted February 3, 2009 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-05-686.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joel Harris, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Bernardo Rivera appeals from two amended judgments of conviction entered on February 8, 2005, changing previously imposed concurrent sentences to consecutive sentences. We affirm the convictions; reverse and vacate the consecutive sentences; and remand to the trial court to enter corrected judgments of conviction reinstating the originally imposed concurrent sentences.

The facts are not disputed. On March 23, 2004, defendant was arrested for selling a controlled dangerous substance (CDS) (cocaine). On May 12, 2004, defendant was charged by a Middlesex County Grand Jury under Indictment No. 04-05-686 with third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1) (Count One); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (Count Three); and second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7.1 (Count Four).

On October 5, 2004, while again engaged in illegal drug activities, defendant was arrested in possession of a loaded handgun. On October 5, 2004, defendant was charged under a Middlesex County Accusation No. 04-01-230 with second-degree possession of a firearm while engaged in a CDS distribution related activity, N.J.S.A. 2C:39-4.1. On the same day, defendant entered into a negotiated plea with the State on the charges under both the Indictment and Accusation. Defendant pled guilty to Count Three of the Indictment and to the single charge under the Accusation. In exchange, the State agreed to recommend that any sentences imposed not exceed an aggregate imprisonment term of eleven years, that is, a consecutive sentence of four years on Count Three of the Indictment and seven years on the single-charge under the Accusation; and that any sentences imposed for violations of probation, pertaining to unrelated convictions, run concurrent.

On January 24, 2005, contrary to the plea agreement, the trial court sentenced defendant on the conviction for possession of a firearm to a seven-year term of incarceration, with a three-year period of parole ineligibility; and on the conviction of possession of a CDS with intent to distribute within 1,000 feet of a school, the court sentenced defendant to a four-year concurrent term, with a two-year period of parole ineligibility. Judgments of convictions were entered the same day.

On February 8, 2005, the court sentenced defendant for a violation of probation unrelated to the above convictions. Prior to announcing its sentence on the violation of probation, the court reconsidered the sentences imposed on the convictions on Count Three of the Indictment and under the Accusation. In so doing, the court reimposed the same sentence of seven years of imprisonment on defendant's conviction of second-degree possession of a firearm while engaged in a CDS distribution related activity under the Accusation. However, the court changed the terms on Count Three of the Indictment, imposing a four-year term of imprisonment, running that sentence consecutive to the sentence imposed on the Accusation, rather than concurrent. In addition, the court sentenced defendant to a concurrent four-year term of imprisonment on the violation of probation. Accordingly, defendant received an aggregate sentence of eleven years of imprisonment. The court entered amended judgments of conviction that day.

On appeal, defendant argues:

POINT I.

THE CONSECUTIVE SENTENCES IMPOSED ON THE DEFENDANT BY THE TRIAL COURT AT THE RE[-]SENTENCING PROCEEDING MUST BE VACATED AND THE ORIGINAL CONCURRENT SENTENCES MUST BE REINSTATED BECAUSE JEOPARDY ATTACHED TO THE ORIGINAL SENTENCES.

A. JEOPARDY ATTACHED TO THE DEFENDANT'S ORIGINAL SENTENCE WHEN HE BEGAN TO SERVE IT.

B. THE DEFENDANT HAD A REASONABLE EXPECTATION OF FINALITY IN HIS ORIGINAL SENTENCE, THEREFORE, THE INCREASED SECOND SENTENCE IMPOSED BY THE TRIAL COURT VIOLATED THE DEFENDANT'S DOUBLE JEOPARDY RIGHTS.

On appeal, defendant argues that the consecutive sentences imposed at the re-sentencing proceeding must be vacated, and the originally imposed concurrent sentences reinstated, because jeopardy had attached to the original sentences. Defendant contends that he had already begun to serve his original sentences before the February 2005 re-sentencing proceeding.

The State counters that a sentence imposed on a handgun conviction, pursuant to N.J.S.A. 2C:39-4.1d, must be served consecutively to sentences imposed on any convictions for violation of the sections of the Comprehensive Drug Reform Act of 1987 (drug offenses) referenced in the statute. The State asserts that the original sentences were illegal, and because defendant does not have a right to an illegal sentence, he cannot challenge the amended sentences. We conclude that the State misinterprets N.J.S.A. 2C:39-4.1d, and that on entry of the original judgments of conviction jeopardy attached.

In construing a statute, the function of a court is to determine the intent of the Legislature and, generally, "'the best indicator of that intent is the statutory language.'" State v. D.A., 191 N.J. 158, 164 (2007) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). "A clear and unambiguous statute is not open to construction or interpretation . . . ." Watt v. Mayor & Council of Franklin, 21 N.J. 274, 277 (1956). "Such a statute is clear in its meaning and no one need look beyond the literal dictates of the words and phrases used for the true intent and purpose in its creation." Ibid. Simply stated, "[i]f the plain language leads to a clear and unambiguous result, then the interpretative process should end, without resort to extrinsic sources." D.A., supra, 191 N.J. at 164.

Moreover, a court should "only turn to extrinsic evidence in limited circumstances, such as when 'there is ambiguity in the statutory language that leads to more than one plausible interpretation.' In addition, [a court] may also resort to extrinsic evidence if a plain reading of the statute leads to an absurd result or if the overall statutory scheme is at odds with the plain language." Ibid. (internal quotations and citations omitted).

N.J.S.A. 2C:39-4.1a provides in pertinent part that:

Any person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit a violation of . . . [various drug offenses including N.J.S.A. 2C:35-5b(3), N.J.S.A. 2C:35-7, and N.J.S.A. 2C:35-7.1] is guilty of a crime of the second degree.

The anti-merger provision of N.J.S.A. 2C:39-4.1d also provides in pertinent part:

[A] conviction arising under this section shall not merge with a conviction for a violation of any of the sections of chapter 35 . . . referred to in this section nor shall any conviction under those sections merge with a conviction under this section. Notwithstanding . . . any other provision of law, the sentence imposed upon a violation of this section shall be ordered to be served consecutively to that imposed for any conviction for a violation of any of the sections of chapter 35 . . . referred to in this section . . . .

Applying the above principles of statutory construction, we conclude that the unambiguous language of N.J.S.A. 2C:39-4.1d only prohibits merger and mandates consecutive sentences when there is a nexus between the firearm offense and a drug offense referenced in subsection a of the statute. "Any person who has in his [or her] possession any firearm while in the course of committing, attempting to commit, or conspiring to commit . . . ." N.J.S.A. 2C:39-4.1a (emphasis added); see also State v. Spivey, 179 N.J. 229, 236-40 (2004) (holding that a person can be convicted of possession of a firearm while in the course of committing a drug offense referenced in N.J.S.A. 2C:39-4.1a based on constructive possession of the weapon when the evidence is sufficient for the jury to infer that the firearm was accessible for use in the commission of the drug offense, that is, sufficient to establish "a temporal and spatial link between the possession of the firearm and the drugs that defendant intended to distribute") (emphasis added).

The issue was also addressed in State v. Martinez, 387 N.J. Super. 129, 143 (App. Div.), certif. denied, 188 N.J. 579 (2006), where another panel of this court, in holding that successive punishment under N.J.S.A. 2C:39-4.1d is constitutional, stated:

The Legislature defines what constitutes criminal offenses and the parameters of punishment. It is plain from the language of N.J.S.A. 2C:39-4.1 that it was the intent to significantly increase the penalties when a firearm is possessed in combination with possession of controlled dangerous substances with the intent to distribute. And the unambiguous anti-merger bar has N.J.S.A. [2C:39-4.1d] mandating separate consecutive sentences for the designated crime and the possession of weapons in the course of committing that crime underscores the legislative intent.

[(emphasis added) (internal citations omitted).]

We also find support for our interpretation of N.J.S.A. 39:4-1d in the legislative history leading to the enactment of the statute. In enacting the statute, the Legislature pronounced that it was "establish[ing] enhanced penalties for persons who, when committing certain drug offenses, have in their possession a firearm or other weapon." Assembly Law and Public Safety Committee, Statement to Assembly Bill No. 1848, at 1 (May 4, 1998). In fact, the "Executive Summary" introducing the "Report to the Governor by the Attorney General on the Need to Update the Comprehensive Drug Reform Act of 1987" provides:

Where a person is convicted of a firearms violation, the sentence should be made consecutive to the sentence imposed on a drug offense committed at the same time.

[State v. Harrison, 358 N.J. Super. 578, 586 (App. Div. 2003), aff'd sub nom, Spivey, supra, 179 N.J. at 229 (emphasis in original).]

Here, no nexus existed between defendant's possession of the handgun on October 5, 2004, and the possession of a CDS with intent to distribute on March 23, 2004. Accordingly, we conclude that the consecutive sentences were not mandated by the statute, and therefore, the original concurrent sentences imposed on January 24, 2005, were not illegal. With that said, we now turn to defendant's argument that the trial court impermissibly re-sentenced him on February 8, 2005, after he had begun serving the sentences imposed under the original judgments of conviction.

The Fifth Amendment of the Federal Constitution, and Article I, Paragraph 11 of the New Jersey Constitution provides three forms of constitutional protection, including that of protecting a defendant against the imposition of more than one punishment for a single offense. State v. Ryan, 86 N.J. 1, 10 (1981); Martinez, supra, 387 N.J. Super. at 142-43. Under that principle, "jeopardy attaches once the defendant has commenced serving his prison term." Ryan, supra, 86 N.J. at 10; State v. Espino, 264 N.J. Super. 62, 66 (App. Div. 1993). Accordingly, "a defendant who has begun to serve a sentence ordinarily may not be resentenced to an increased term," and "a change in a sentence from concurrent to consecutive . . . which was not part of the original sentence would constitute an increased term." Id. at 67. Such is the present case.

The incidents leading to the charges of Count Three of the Indictment and the Accusation occurred seven months apart. Because there was an absence of a nexus between the two incidents, that is, defendant's possession of a handgun on October 5, 2004, did not occur "in the course of" committing the drug-related offense that occurred on March 23, 2004, the mandatory consecutive sentence provision of N.J.S.A. 2C:39-4.1d was not applicable. Accordingly, because defendant had commenced serving his concurrent sentences under the judgments of conviction of January 24, 2005, the court improperly re-sentenced defendant to consecutive sentences on February 8, 2005. Ryan, supra, 86 N.J. at 10-11; Espino, supra, 264 N.J. Super. at 67.

 
We affirm the convictions; reverse and vacate the sentences imposed on Count Three of Indictment No. 04-05-686 and Accusation No. 04-01-230; and remand to the trial court to enter corrected judgments of conviction reinstating the original concurrent sentences imposed by the court on January 24, 2005.

N.J.S.A. 2C:35-1 to -29.

(continued)

(continued)

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A-5324-05T4

May 12, 2009