STATE OF NEW JERSEY v. THOMAS FREDERICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5538-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS FREDERICK,

A/K/A/ JAMIL ASANTE

Defendant-Appellant.

_____________________________________________

June 17, 2013

Argued September 12, 2012 - Decided

Before Judges Fuentes and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 94-03-00456.

Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Ms. Ferro of counsel and on the brief).

Stephanie Davis-Elson, Acting Special Deputy Attorney General/ActingAssistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Davis-Elson, on the brief).

PER CURIAM

Defendant Thomas Frederick appeals from the April 1, 2011 Law Division order denying his motion to correct an illegal sentence. For the reasons that follow, we reverse and remand to the trial court for further proceedings.

The record reveals that on October 6, 1995, a jury convicted defendant of five charges resulting from a carjacking in Jersey City, including counts of first-degree carjacking, N.J.S.A. 2C:15-2; first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree kidnapping, N.J.S.A. 2C:13-1b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The convictions stemmed from an incident in which defendant stole a van by threatening the owner with a handgun, then forcing her to accompany him for several blocks.

On May 21, 1996, the trial judge merged the charges of armed robbery and possession of a weapon for unlawful purposes, and granted the State's motion for an extended term under the Graves Act, N.J.S.A. 2C:43-6c, on the armed robbery charge. The judge sentenced defendant to fifty years with a twenty-year parole disqualifier on the armed robbery, a consecutive term of ten years with a five-year parole disqualifier on the kidnapping charge, a concurrent term of thirty years with a fifteen-year parole disqualifier on the carjacking charge, and a concurrent term of five years with a two-and-one-half years parole disqualifier on the weapons charge, resulting in an aggregate sentence of sixty years imprisonment with thirty-five years of parole ineligibility. We affirmed both the convictions and the sentence in an unreported decision, State v. Frederick, A-7156-95 (App. Div. Apr. 14, 1998), and the New Jersey Supreme Court denied defendant's petition for certification. 160 N.J. 475 (1999).

Subsequently, on August 6, 1999, defendant filed a petition for post-conviction relief (PCR), which the trial judge denied on May 11, 2000. Defendant appealed, arguing ineffective assistance of counsel, insufficiency of the evidence, unreliability of the victim's identification, and double jeopardy as grounds for reversal of his conviction. We affirmed in an unreported decision, State v. Frederick, A-5105-00 (App. Div. Dec. 17, 2002), and the New Jersey Supreme Court denied defendant's petition for certification. 176 N.J. 429 (2003). On February 5, 2004, defendant filed a petition for a writ of habeas corpus with the United States District Court, which was denied. Frederick v. Hendricks, No. 04-519(FSH) (D.N.J. May 31, 2006).

Several years later, on March 14, 2011, defendant filed a pro se motion to correct an illegal sentence pursuant to R. 3:22-12 and requested oral argument. On April 1, 2011, without requiring a response from the State or hearing oral argument, the trial judge issued a written decision, which denied defendant's motion, concluding, without discussion of the merger issue, that it was without merit and time-barred. This appeal followed.

On appeal, defendant raises the following argument for our consideration:

THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO CORRECT THE ILLEGAL SENTENCE.

A: Defendant's application to correct an illegal sentence was not time-barred.

B: The court below failed to address defendant's principal issue that his sentence is illegal.

A motion to correct a sentence not authorized by law may be made at any time. R. 3:21-10(b)(5). The failure to merge convictions when appropriate results in an illegal sentence for which there is no time limit. State v. Romero, 191 N.J. 59, 80 (2007). Although defendant's motion incorrectly referred to R. 3:22-12, he was clearly filing a motion to correct an illegal sentence. This motion was not time-barred.

We first observe that "[a]t its core, merger's substantial purpose 'is to avoid double punishment for a single wrongdoing.'" Ibid. (quoting State v. Diaz, 144 N.J. 628, 637 (1996)). See also State v. Miller, 108 N.J. 112, 116 (1987) (merger stems from the well-established principle that an accused who has committed only one offense "may not be punished as if for two"). "Merger implicates a defendant's substantive constitutional rights." State v. Cole, 120 N.J. 321, 325 (1990).

N.J.S.A. 2C:1-8 provides for merger of offenses to avoid impermissible multiple convictions for the same conduct and sets forth a series of factors to guide a court in determining whether to bar multiple convictions for conduct that constitutes more than one offense. In particular, N.J.S.A. 2C:1-8d calls for merger when one offense is established by proof of the same or less than all the facts required to establish the commission of another offense charged. See State v. Mirault, 92 N.J. 492, 502-03 (1983).

Here, defendant argues that the trial judge should have merged his conviction for first-degree armed robbery with first-degree carjacking as the same facts were used to prove both offenses. N.J.S.A. 2C:1-8d. According to defendant, the merger would result in a lower sentence because the Graves Act did not include carjacking as an offense on which an extended term can be imposed. N.J.S.A. 2C:43-6c. The State concedes that defendant "may be correct as to his claims on the issue of merger" but argues that the extended term for the armed robbery conviction is still appropriate since, when crimes are merged with each other, the more severe aspect of each charge survives the merger. State v. Dillihay, 127 N.J. 42, 54-55 (1992).

Because merger has Sixth Amendment constitutional implications, Cole, supra, 120 N.J. at 325, the first determination must be whether the convictions merged under the facts of this case. The trial judge decided defendant's pro se petition without ascertaining the State's position concerning merger or addressing defendant's arguments. We appreciate that, due to the vagueness of defendant's pro se motion, the judge was hard-pressed to understand the basis for defendant's illegal sentence claim. However, the judge made no inquiry to clarify the motion. Hence, the judge did not consider defendant's specific claim of sentence illegality based upon the failure to merge the armed robbery and the carjacking.

Consequently, we are constrained to reverse and remand the matter to the trial judge to determine, after ascertaining the State's position, whether the two convictions should have merged. If the trial judge determines that the two convictions should merge with each other, then defendant must be resentenced. We do not retain jurisdiction.