STATE OF NEW JERSEY v. STAR A. MOOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4682-05T44682-05T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

STAR A. MOOR,

Defendant-Respondent.

___________________________________

 

Submitted May 2, 2007 - Decided May 25, 2007

Before Judges Wefing, C.S. Fisher and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, No. 05-08-00691-I.

Wayne J. Forrest, Somerset County Prosecutor,

attorney for appellant (Michael McLaughlin,

Assistant Prosecutor, on the brief).

Kevin G. Roe, attorney for respondent

(Nina C. Remson, on the brief).

PER CURIAM

The State of New Jersey appeals from a sentence imposed by the trial court upon defendant. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Defendant was indicted on one count of third-degree shoplifting. N.J.S.A. 2C:20-11b(1). During the course of entering her plea of guilty, defendant admitted entering two different stores operated by Borders Books and stealing CDs having an approximate value of eight hundred dollars. In return, the State agreed to recommend a sentence of probation, conditioned on serving up to three hundred sixty four days in the county jail, community service, and restitution.

Defendant appeared for sentencing some five months after she entered her plea of guilty. Her attorney made an eloquent argument against including any period of incarceration as a condition of probation. She noted that her client was a single mother and in desperate financial condition at the time of the theft and facing eviction. She stressed that her client had since obtained two jobs and had, in fact, appeared in court with the funds necessary for restitution. She told the court that she had originally intended to ask the court to sentence defendant to ninety days on the bracelet program but that her client had informed her that she worked with medical equipment which would be affected by the bracelet. She thus asked the trial court to sentence defendant to ninety days in jail as a condition of probation but direct that the ninety days be served at the end of the probationary period. She also proposed, as an alternative, that if the trial court determined that it must impose a period of incarceration, defendant be allowed to serve her sentence on weekends. This would permit defendant to keep one of her jobs and to care for her son during the week.

After reviewing what it considered to be the applicable aggravating and mitigating factors, the trial court concluded the mitigating factors predominated. It sentenced defendant to three years of probation, especially conditioned upon defendant serving ninety days in jail at the end of her probation, to be eliminated if defendant complied with all the other terms of probation. It also directed defendant to perform seventy-five hours of community service.

The State contends this sentence is illegal, and we are constrained to agree. N.J.S.A. 2C:20-11c(4) sets forth certain defined sentencing parameters for the offense of shoplifting. It specifies that an individual having three or more convictions for shoplifting must be sentenced to a maximum of twenty-five days of community service and "shall serve a minimum term of imprisonment of not less than 90 days."

Defendant's pre-sentence report reveals her extensive history of involvement with the criminal justice system. Defendant has fifteen prior convictions; this offense represented her fourth indictable conviction. Four of her prior convictions were for shoplifting. In 1997 she served one hundred eighty days in jail as a condition of probation for shoplifting, and in 2001 she served ninety days in jail as a condition of probation for shoplifting. Defendant makes no assertion that she was not represented by counsel at the time of any of her prior convictions. State v. Laurick, 120 N.J. 1, 16, cert. denied, 498 U.S. 967, 111 S. Ct. 429, 112 L. Ed. 2d 413 (1990) ("[A]n uncounseled conviction without waiver of the right to counsel is invalid for the purpose of increasing a defendant's loss of liberty").

We do not fault the trial court for its good intentions, but we are satisfied it had no authority to impose the sentence that it did. The Legislature has specified that an individual having a record such as defendant's must serve at least ninety days in jail. The trial court was not free to disregard that legislative mandate.

The parties have not addressed before us whether the trial court had the authority to consider permitting defendant to serve her sentence on weekends, as her attorney had proposed as one alternative. We, therefore, express no opinion on the question. See State v. Luthe, 383 N.J. Super. 512 (App. Div. 2006).

It is clear that defendant was never advised when she entered her plea of guilty that by doing so, she faced a mandatory sentence of ninety days in jail. We, therefore, remand this matter to the trial court to permit defendant the opportunity to move, if she elects, to withdraw her plea of guilty. If defendant does not move to withdraw her guilty plea, the trial court shall proceed to re-sentence her in accordance with the statute.

Reversed and remanded. We do not retain jurisdiction.

 

The indictment was returned against "Star A. Moor a/k/a Rochelle Tanner." According to defendant's attorney at sentencing, defendant's real name is Rochelle Turner. All the papers before us, however, refer to defendant as Star Moor.

This provision was inadvertently omitted from the judgment of conviction but was stated by the court at the time of sentencing. State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).

(continued)

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A-4682-05T4

 

May 25, 2007