STATE OF NEW JERSEY v. CRAIG REID

NOT FOR PUBLICATION WITHOUT THE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-Respondent,

v.

CRAIG REID,

Defendant-Appellant.

___________________________________________

June 16, 2015

Submitted May 12, 2015 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95 05-1815.

Craig Reid, appellant pro se.

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial in 1996, defendant Craig Reid was convicted of multiple counts of first-degree robbery, kidnapping, aggravated assault, burglary, terroristic threats and weapons offenses, including a single count in a second indictment charging him with possession of a firearm by certain persons previously convicted. Judge Michael A. Petrolle imposed a mandatory extended term sentence on the kidnapping count life imprisonment and a consecutive mandatory extended term sentence on one of the robbery counts fifty years. The judge imposed concurrent sentences on the remaining counts such that defendant's aggregate sentence was life imprisonment plus fifty years, with a fifty-year period of parole ineligibility.

We affirmed defendant's convictions but remanded for correction of the judgment of conviction to accurately reflect the sentence imposed. State v. Reid, Nos. A-2697-96, A-2707-96 (App. Div. Dec. 22, 1998), certif. denied, 160 N.J. 91 (1999). Judge Petrolle denied defendant's first petition for post-conviction relief (PCR) following an evidentiary hearing, and we affirmed that order. State v. Reid, No. A-4494-04, (App. Div. Jan. 24, 2007), certif. denied, 192 N.J. 71 (2007). Judge Petrolle denied defendant's second PCR petition, and we again affirmed. State v. Reid, No. A-1573-11 (App. Div. Nov. 27, 2013), certif. denied, 218 N.J. 274 (2014).

In the interim, in September 2013, defendant moved pro se to correct what he alleged were two illegal aspects of his sentence. First, defendant contended that the sentence imposed on the kidnapping count life imprisonment with a twenty-five year period of parole ineligibility exceeded that permitted by N.J.S.A. 2C:13-1(c). Second, defendant claimed that imposing two consecutive extended term sentences violated N.J.S.A. 2C:44-5(a)(2), which provides that "[n]ot more than one sentence for an extended term shall be imposed."

In a short written opinion, Judge Petrolle concluded that both arguments were considered and rejected on direct appeal. The judge stated, "Whether presented under the guise of a claim of excessive sentence or illegal sentence, the defendant's challenge is grounded in substantially the same arguments already rejected." As to the consecutive extended term sentences, the judge noted they "were not discretionary, but were Graves Act mandatory under [N.J.S.A.] 2C:43-6 and [N.J.S.A.] 2C:44-3." Relying upon our decision in State v. Connell, 208 N.J. Super. 688 (App. Div. 1986), the judge concluded that imposition of two extended terms was "not incorrect or illegal."

On appeal, defendant renews the arguments made before Judge Petrolle. We affirm substantially for the reasons expressed by Judge Petrolle. We add only the following comments.

Although we have previously affirmed defendant's sentence, the contention now raised that the life sentence imposed on the kidnapping conviction is illegal was not specifically addressed in our prior opinions. Defendant was convicted of first-degree kidnapping, which, pursuant to N.J.S.A. 2C:13-1(c)(1), provides for an enhanced "ordinary term of imprisonment between 15 and 30 years." Ibid. (emphasis added). Defendant seemingly contends that, since he was not convicted of kidnapping under circumstances implicating sentencing under N.J.S.A. 2C:13-1(c)(2), which provides for an ordinary term of between twenty- five years and life, the life sentence Judge Petrolle imposed was illegal.

However, because defendant was a "[s]econd offender with a firearm," N.J.S.A. 2C:44-3(d), and kidnapping is one of the enumerated crimes contained in N.J.S.A. 2C:43-6(c), a mandatory extended term sentence was required. An extended term sentence for kidnapping pursuant to N.J.S.A. 2C:13-1 may be between thirty years and life imprisonment. N.J.S.A. 2C:43-7(a)(1). Therefore, Judge Petrolle's extended term sentence of life imprisonment was not an illegal sentence.

Defendant's second argument is also unpersuasive. As noted, a mandatory extended term was required on defendant's kidnapping conviction. For the same reasons, a mandatory extended term was required to be imposed on defendant's first-degree robbery conviction. The extended term of imprisonment for first-degree robbery is between twenty years and life imprisonment. N.J.S.A. 2C:43-7(a)(2). Judge Petrolle imposed a fifty-year term.

Defendant correctly points out that N.J.S.A. 2C:44-5(a)(2) clearly states that "[n]ot more than one sentence for an extended term shall be imposed." However, as Judge Petrolle noted, we have specifically held that that provision of the Criminal Code "limits the judge's authority to impose discretionary extended prison terms, not Graves Act mandatory extended prison terms." Connell, supra, 208 N.J. Super. at 691.

Recently, the Court recognized the continued vitality of our holding in Connell. In State v. Robinson, 217 N.J. 594, 598 (2014), which was decided after Judge Petrolle's decision, the Court held "that the plain language of N.J.S.A. 2C:44-5(a)(2) bars the imposition of a discretionary extended term when the prosecutor has requested one and the trial court is obliged to impose a mandatory extended term on another offense in the same proceeding." (Emphasis added). Citing Connell, supra, 208 N.J. Super. at 697, however, the Court reiterated that "[a] defendant may be sentenced to multiple mandatory extended terms in the same proceeding." Robinson, supra, 217 N.J. at 597.

As defendant has pointed out in his reply brief, Connell involved the imposition of multiple concurrent mandatory extended term sentences. Connell, supra, 203 N.J. Super. at 690-91. Here, defendant was sentenced to two consecutive mandatory extended term sentences. We do not think that makes any difference, since the Criminal Code provides for the imposition of consecutive sentences, N.J.S.A. 2C:44-5(a), and, as we held in Connell, one of two express limitations upon both concurrent and consecutive sentences, N.J.S.A. 2C:44-5(a)(2), does not apply in this case. Moreover, N.J.S.A. 2C:44-5(a) provides, "There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses."

Affirmed.