STATE OF NEW JERSEY v. ALLAN TUTTLE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant/

Cross-Respondent,

v.

ALLAN TUTTLE,

Defendant-Respondent/

Cross-Appellant.

_________________________________

July 22, 2014

Submitted April 8, 2014 Decided

Before Judges Espinosa and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-03-00443.

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant/cross-respondent (Megan B. Kilzy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent/cross-appellant (Michael J. Pastacaldi, Designated Counsel, on the brief).

PER CURIAM

The State of New Jersey appeals the re-sentencing of defendant's conviction for aggravated sexual assault. Defendant cross-appeals the determination that the new sentence run consecutively. We dismiss the State's appeal and affirm the trial court's decision that the sentence run consecutively.

In August 1994, defendant received the following sentences for crimes committed on July 23, 1992: an extended life term, with a twenty-five year period of parole ineligibility, for first-degree armed robbery, N.J.S.A. 2C:15-1; a consecutive ten-year term, with a five-year parole ineligibility period, for first-degree kidnapping, N.J.S.A. 2C:13-1(b); a consecutive ten-year term, with a five-year period of parole ineligibility, for first-degree attempted aggravated sexual assault with a weapon, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(4); a concurrent five-year term, with a two and one-half year period of parole ineligibility, for third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); and an eighteen-month term, with a nine-month period of parole ineligibility, for fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant also had been convicted of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), which was merged into the conviction for armed robbery.

On appeal, we vacated the conviction for kidnapping, N.J.S.A. 2C:13-1(b). We further vacated the sentence on the unlawful possession of a weapon conviction, N.J.S.A. 2C:39-5(d), and merged it with the armed robbery conviction, N.J.S.A. 2C:15-1. The remaining convictions and associated sentences remained intact. State v. Tuttle, A-0679-94 (App. Div. May 20, 1996), certif. denied, 146 N.J. 564 (1996).

In April 1997, defendant received the following sentence for crimes committed on January 11, 1993: an extended life term, with a twenty-five year period of parole ineligibility, for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(A)(4); a consecutive twenty-year term, with a ten-year period of parole ineligibility, for first-degree kidnapping, N.J.S.A. 2C:13-1(B)(1); and a consecutive twenty-year term, with a ten-year period of parole ineligibility, for first-degree armed robbery, N.J.S.A. 2C:15-1.

On appeal, we reduced the sentence on armed robbery to fifteen years, with a five-year period of parole ineligibility; otherwise, the convictions and other sentences remained undisturbed. State v. Tuttle, A-5695-96 (App. Div. April 5, 1999), certif. denied, 161 N.J. 334 (1999).

In 2011, defendant filed a motion to correct the sentence imposed in 1997 for aggravated sexual assault. He argued the extended-term constituted an illegal sentence as, when he received such sentence, he was already serving an extended-term sentence, specifically, the one that had been imposed in 1994 for armed robbery. The State agreed with defendant.

The trial court granted defendant's motion, noting that in State v. Hudson, 209 N.J. 513, 534 (2012), the Court held that, if a defendant is serving an extended-term sentence and is thereafter convicted of another crime, the court cannot impose an extended-term sentence for that subsequent crime if it had been committed before the defendant had been sentenced for the extended-term sentence he was then serving. The crimes on which defendant was sentenced in 1997 were committed in 1993, clearly before the time he received the extended-term sentence in 1994. Accordingly, the trial court vacated the extended-term sentence imposed in 1997 for the aggravated sexual assault conviction.

Following the submission of briefs, hearing oral argument, and weighing and considering the aggravating and mitigating factors, see N.J.S.A. 2C:44-1(a) and (b), the trial court resentenced defendant to a fifteen-year term, with a five-year period of parole ineligibility, on the aggravated sexual assault conviction. The court also considered the factors in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S.

1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and found that a consecutive sentence was warranted.1

The State raises the following points for our consideration:

POINT I THE TRIAL COURT S FAILURE TO RESENTENCE DEFENDANT TO A MAXIMUM TERM CREATES A REVERSIBLE, ILLEGAL SENTENCE

a. THE MAXIMUM PENALTY OF TWENTY YEARS IS JUSTIFIED.

b. A TWENTY-YEAR SENTENCE FOR AGGRAVATED SEXUAL ASSAULT DOES NOT VIOLATE THE PRESUMPTION AGAINST MULTIPLE CONSECUTIVE SENTENCES OF MAXIMUM TERMS.

The State contends the trial court erred when it did not impose the maximum sentence of twenty years, see N.J.S.A. 2C:43-6(a)(1), with a ten-year period of parole ineligibility, for this first-degree aggravated sexual assault conviction. Among other reasons, the State argued that the circumstances of the crime and defendant's criminal history warranted the imposition of the maximum sentence.

"[A]bsent explicit statutory authority, the State has no right to appeal a sentence." State v. Veney, 327 N.J. Super. 458, 460 (App. Div. 2000) (citing State v. Cannon, 128 N.J. 546, 573, n.13 (1992) (citing State v. Watson, 183 N.J. Super. 481, 483 (App. Div.), certif. denied, 91 N.J. 530 (1982)); State in Interest of R.P., 198 N.J. Super. 105, 106-07 (App. Div. 1984); see also State v. Kennedy, 419 N.J. Super. 475, 477 (App. Div. 2011). Even where statutory authority exists, the State's right to appeal a discretionary sentence is restricted to those circumstances recognized in N.J.S.A. 2C:44-1(f)(2), none of which exist in the matter sub judice. Id. at 460-61. (Citation omitted).

Here, the new sentence the trial court imposed was a discretionary one, requiring the court to assess the defendant "anew" at the time of resentencing. State v. Robinson, ___, N.J. ___,___ (2014) (citing State v. Randolph, 210 N.J. 330, 351-52 (2012)); State v. Kirk, 243 N.J. Super. 636, 645 (App. Div. 1990). As this was a discretionary sentence and none of the circumstances that enable the State to appeal this kind of sentence exist, we must dismiss the State's appeal.

In its cross-appeal, defendant raises the following point:

POINT [I] THE TRIAL COURT ERRED IN FINDING THAT THE SEXUAL ASSAULT COUNT BE RUN CONSECUTIVELY TO THE REMAINING COUNTS.

After considering the record and the briefs, we conclude defendant's argument is without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(2).

Dismissed in part and affirmed in part.

1 The trial court was uncertain whether defendant had to be re-sentenced for the other offenses for which he was sentenced in 1997; for the sake of completeness, the court examined these other offenses and concluded the sentences imposed back in 1997 were reasonable and in no need of alteration.