STATE OF NEW JERSEY v. RICHARD DELCRISTO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2673-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD DELCRISTO,

Defendant-Appellant.

________________________________________________________________

February 16, 2011

 

Submitted December 7, 2010 - Decided

 

Before Judges Baxter and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-12-502.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).

 

ThomasS. Ferguson, Warren County Prosecutor, attorney for respondent(Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Richard DelCristo was sentenced to three years in prison as a result of pleading guilty to a violation of probation. The State subsequently moved to correct an illegal sentence. After granting that motion, the court resentenced defendant to five years in prison with an eighteen-month parole disqualifier. Defendant appeals that resentencing, arguing that the resentencing violated the Double Jeopardy clauses of the state and federal constitutions. U.S. Const. amend. V; N.J. Const. art. I, 11. We agree with defendant's argument. We remand for the vacating of the sentence imposed on December 10, 2009 and for the re-imposition of the sentence imposed on October 1, 2009.

Defendant entered a guilty plea to Warren County Accusation No. 2007-07-270 on July 5, 2007, admitting he committed the following crimes: on May 4, 2007, third-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count one); third-degree conspiracy to possess with intent to distribute marijuana, N.J.S.A. 2C:35-5(b)(11) and 2C:5-2 (count two); and three counts of fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(12), on April 23, 2007, April 25, 2007 and May 2, 2007 (counts three, four and five). On April 25, 2008, after the trial court merged count two into count one, defendant was sentenced to concurrent two year probationary terms on all counts with a special condition of 120 days in the county jail. The requisite fines and monetary penalties were imposed.

On the same date of April 25, 2008, defendant pled guilty to two counts of Warren County Indictment No. 2007-12-502 charging third-degree conspiracy to possess with intent to distribute marijuana on September 10, 2007, and third-degree possession with intent to distribute marijuana on the same date. The remaining two counts of the indictment named only co-defendant. On May 8, 2008, defendant received concurrent five-year probationary terms with the special condition that he attend and complete drug court.1 The requisite fines and monetary penalties were imposed.

A handwritten notation in section thirteen of defendant's pre-printed plea form, which is allocated for the prosecutor to specify any sentence he or she has agreed to recommend, states: "State agrees to defendant's admission to Drug Court. If defendant is terminated from Drug Court - sentence would be Brimage sentence of 5 years w/18 months 'stip.'" See State v. Brimage, 153 N.J. 1 (1998) (where the Court found that plea-bargaining guidelines for drug offenses then in existence were inconsistent throughout the state and directed the Attorney General to develop uniform statewide guidelines, now known as the Brimage Guidelines).

On October 1, 2009, defendant pled guilty to violation of probation on both the indictment and the accusation, admitting that he had been found guilty of possession of marijuana on October 29, 2008, in Allentown City, Pennsylvania and that he failed to cooperate with treatment in that he left Damon House long-term in-patient treatment center without staff approval.

He was immediately sentenced to three years in prison. The prosecutor did not request a parole disqualifier.2 On October 28, 2009, the State filed a motion to correct an illegal sentence, alleging the Brimage Guidelines term must be imposed. The trial court agreed with the State and resentenced defendant to the more severe sentence required pursuant to the Brimage Guidelines on both the accusation and the indictment.

On appeal defendant raises the following arguments:

 

 

 

POINT ONE

 

THE JUDGE'S ORDER ENTERED ON DECEMBER 10, 2009, INCREASING DEFENDANT'S SENTENCE UNDER INDICTMENT 2007-12-502, WHICH WAS IMPOSED ON OCTOBER 1, 2009, VIOLATED PRINCIPLES OF DOUBLE JEOPARDY BECAUSE DEFENDANT HAD A LEGITIMATE EXPECTATION OF FINALITY IN HIS OCTOBER 1st SENTENCE.

 

POINT TWO

 

IN SENTENCING DELCRISTO UNDER INDICTMENT 2007-12-502, THE TRIAL COURT ERRED IN FAILING TO MERGE HIS CONVICTIONS FOR CONSPIRACY TO POSSESS WITH INTENT TO DISTRIBUTE MARIJUANA AND POSSESSION WITH INTENT TO DISTRIBUTE MARIJUANA.

 

POINT THREE

 

THE JUDGMENT OF CONVICTION MISTAKENLY ENTERED UNDER ACCUSATION 2007-07- 270 ON DECEMBER 10, 2009 MUST BE VACATED AND THE MATTER REMANDED FOR ENTRY OF A JUDGMENT THAT REFLECTS THE SENTENCE ORALLY PRONOUNCED ON OCTOBER 1, 2009.

The State concedes the validity of defendant's second and third points. Thus, we will remand for the entry of a judgment of conviction reflecting a merger of count one and count two of the indictment as well as the reinstatement of the three-year concurrent prison sentence imposed on the accusation on October 1, 2009, which both parties deem appropriate.

The parties disagree over whether the sentence on the indictment imposed by the trial court after the violation of probation on October 1, 2009, constitutes an illegal sentence subject to correction at any time. R. 3:22-2(c); R. 3:22-12(a); R. 3:21-10(b)(5). The State argues that it did not waive the Brimage Guidelines parole disqualifier by agreeing to defendant's admission into drug court. Indeed, defendants who are sentenced to drug court through N.J.S.A. 2C:35-14 must receive statutory mandatory minimum sentences upon revocation of that special probation. N.J.S.A. 2C:35-14(f)(4) states:

If the court permanently revokes the person's special probation pursuant to this subsection, the court shall impose any sentence that might have been imposed, or that would have been required to be imposed, originally for the offense for which the person was convicted or adjudicated delinquent. The court shall conduct a de novo review of any aggravating and mitigating factors present at the time of both original sentencing and resentencing. If the court determines or is required pursuant to any other provision of this chapter or any other law to impose a term of imprisonment, the person shall receive credit for any time served in custody pursuant to N.J.S.A.2C:45-1 or while awaiting placement in a treatment facility pursuant to this section, and for each day during which the person satisfactorily complied with the terms and conditions of special probation while committed pursuant to this section to a residential treatment facility. The court, in determining the number of credits for time spent in a residential treatment facility, shall consider the recommendations of the treatment provider.

Defendant does not dispute the accuracy of the prosecutor's Brimage Guidelines worksheet calling for a sentence of five years in prison with an eighteen month disqualifier. Defendant argues that the State waived the imposition of a parole disqualifier by its agreement to defendant's admission into drug court on the initial sentencing date of May 8, 2008, or alternatively, by not requesting a parole disqualifier on October 1, 2009.

The court asked the prosecutor if he wanted to speak at defendant's October 1, 2009, sentencing, and the prosecutor limited his response to the following statements:

Yes. Very briefly, Judge. It's been said that the difference between success and failure is where a good man just gives up on himself. Unfortunately the drug court team embraced him, tried to work with him, gave him a great opportunity. He didn't take advantage of it. Accordingly, Judge, we again cite [a]ggravating [f]actors 3, 6 and 9 and ask that you terminate him from probation as unimproved and sentence him to state prison accordingly.

 

The prosecutor did not ask that a parole disqualifier be imposed. If the prosecutor neglects to seek a parole disqualifier for a crime that carries a statutory mandatory minimum sentence, and the court does not impose that minimum, the sentence is illegal. State v. Austin, 33 N.J. Super. 486, 494 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001).

Defendant was not sentenced for crimes that require the imposition of statutory minimum sentences. Thus, the situation here requires us to decide whether the three-year sentence imposed on October 1, 2009, which violates the Brimage Guidelines, constitutes an illegal sentence.

In State v. Veney, 327 N.J. Super. 458 (App. Div. 2000), prior to sentencing, the State made a motion to vacate a plea agreement arguing that its sentence recommendation was based on two errors it had made in the Attorney General's Brimage Guidelines Worksheet. The defendant in Veney pleaded guilty to possession of drugs with intent to distribute within a school zone, N.J.S.A.2C:35-7, which statutorily requires a mandatory minimum sentence. The statute imposing the mandatory minimum, N.J.S.A.2C:35-12, however, allows for a lesser sentence if the defendant pleads guilty pursuant to a negotiated agreement. The calculation of the lesser sentence is governed by the BrimageGuidelines.

The trial court denied the State's motion and sentenced the defendant in conformity with the State's initial plea offer, which was more lenient than the Brimage Guidelines required. Veney, supra, 327 N.J. Super. at 459. We held that after defendant began serving a sentence, the State could not appeal absent explicit statutory authority. We said,

"[T]he touchstone of the double jeopardy analysis lies in the expectation of finality that a defendant vests in his sentence." State v. Sanders, 107 N.J.609, 619 (1987). A defendant's legitimate interest in the finality of the sentence arises after final judgment and commencement of the sentence. State v. Ryan, 86 N.J.1, 9 (citing State v. Laird, 25 N.J.298, 306-07 (1957), cert. denied, 454 U.S. 880, 102 S. Ct. 363, 70 L. Ed. 2d 190 (1981)). Once double jeopardy attaches, it "prohibits the increase of the term imposed in a discretionary sentence." State v. Kirk, 243 N.J. Super.636, 642 (App. Div. 1990).

 

[Id. at 461.]

We went on to observe that the sentence imposed was not illegal, reasoning that:

An "illegal" sentence is inconsistent with the requirements of the controlling sentencing statute or constitutional principles. State v. Flores, 228 N.J. Super.586, 591-92 (App. Div. 1988). It is true that N.J.S.A.2C:35-12 requires the imposition of a mandatory minimum term higher than the twenty-two month period imposed here. However, that same section also provides that a lesser minimum term can be imposed when "the defendant has pleaded guilty pursuant to a negotiated agreement." N.J.S.A.2C:35-12. That is precisely the situation here. Thus, the sentence imposed is not illegal.

 

[Id.at 462.]

 

Therefore, a violation of the BrimageGuidelines does not render a sentence illegal, and the trial court erred in granting the State's motion after defendant began serving the sentence imposed on October 1, 2009. The October 1, 2009 judgment of conviction should be reinstated, as corrected by agreement between the parties.

R

eversed and remanded for further proceedings consistent with this opinion.

1 As a condition of probation, the court may order a "drug or alcohol dependent" individual "to enter a residential treatment program at a facility licensed and approved by the Division of Addiction Services in the Department of Human Services or a program of nonresidential treatment by a licensed and approved treatment provider, to comply with program rules and the requirements of the course of treatment, to cooperate fully with the treatment provider and to comply with such other reasonable terms and conditions as may be required by the court or by law, pursuant to N.J.S.[A.] 2C:45-1, and which shall include periodic urine testing for drug or alcohol usage throughout the period of special probation." N.J.S.A. 2C:35-14(a)(9).

2 A judgment of conviction for the accusation inadvertently was not prepared.