State of New Jersey v. Sherrone H. Robinson , 439 N.J. Super. 196 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5490-12T4
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, December 22, 2014
APPELLATE DIVISION
v.
SHERRONE H. ROBINSON, a/k/a
PAUL R. GRANDISON, SHERRON H. ROBINSON,
Defendant-Appellant.
Submitted December 3, 2014 – Decided December 22, 2014
Before Judges Alvarez, Waugh, and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County,
Indictment No. 11-08-1894 and 10-12-2796.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark P. Stalford, Designated
Counsel, on the brief).
James P. McClain, Atlantic County
Prosecutor, attorney for respondent (John
Santoliquido, Deputy Attorney General, of
counsel and on the brief).
The opinion of the court was delivered by
CARROLL, J.A.D.
Defendant Sherrone H. Robinson appeals from a sentence
imposed pursuant to a negotiated plea agreement. He argues that
two offenses to which he pled guilty should merge. The State
agrees that merger of the two convictions is appropriate. Under
the plea agreement, one offense includes a higher maximum prison
term, while the other carries a lower maximum term but a higher
statutory period of parole ineligibility. This appeal calls
upon us to determine the proper sentence that results upon
merger of the two offenses.
I.
Defendant was charged in Indictment No. 10-12-2796 with
third-degree conspiracy to commit aggravated assault, N.J.S.A.
2C:5-2. He was also charged in Indictment No. 11-08-1894 with
second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2
(count one); second-degree burglary, N.J.S.A. 2C:18-2 (count
two); second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4a (count three); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5b (count four); second-
degree possession of a weapon by a convicted person, N.J.S.A.
2C:39-7 (count five); fourth-degree aggravated assault, N.J.S.A.
2C:12-1b(4) (count eight); and third-degree hindering
apprehension, N.J.S.A. 2C:29-3b(1) (count nine).
On October 16, 2012, defendant pled guilty to counts two
and three of Indictment No. 11-08-1894. Pursuant to the plea
agreement, the State agreed to recommend that defendant be
sentenced in the third-degree range to a four-year prison term
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on the burglary charge, and to a concurrent five-year prison
term on the weapon offense. The burglary offense was subject to
an eighty-five percent parole ineligibility period under the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, while the weapon
offense carried a mandatory minimum term of three years pursuant
to the Graves Act, N.J.S.A. 2C:43-6(c). In placing the plea
agreement on the record, defense counsel indicated that
defendant would thereby receive an aggregate five-year prison
sentence, with a parole ineligibility period of three years,
four months, and twenty-six days, which represented the NERA
component of the four-year burglary sentence. The State also
agreed to dismiss the remaining counts of the indictment.
On January 15, 2013, defendant pled guilty to Indictment
No. 10-12-2796, pursuant to the State's agreement to recommend a
concurrent three-year prison term. On February 15, 2013, the
court sentenced defendant consistent with the plea agreements on
both indictments. The judgment of conviction (JOC) on
Indictment No. 11-08-1894 reflects defendant received 168 days
of jail credit, from May 27, 2011 to November 4, 2011, and from
January 11, 2013 to January 16, 2013. The JOC on Indictment No.
10-12-2796 provides for 117 days of jail credit, from October 4,
2010 to January 22, 2011, and from January 11, 2013 to January
16, 2013.
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Defendant appealed, and this matter was initially placed on
an Excessive Sentencing Oral Argument calendar. R. 2:9-11. The
State agreed that defendant was entitled to an additional 162
days of jail credit on Indictment No. 10-12-2796 for the period
from May 27, 2011 to November 4, 2011. Defendant also argued
for the first time that the burglary and weapon convictions on
Indictment No. 11-08-1894 should merge, since the only intended
purpose of the weapon involved commission of the burglary.
Defendant contended that merger should result in the burglary
conviction surviving, thus eliminating the prison sentence and
other penalties imposed on the weapon conviction. The State
agreed that the two convictions should merge. However, it
argued that the most severe penalties for each conviction that
are consistent with the plea agreement should survive merger.
We referred the matter to the plenary calendar to be relisted
after full briefing to address the merger issue.
On appeal before us, defendant renews the following
arguments:
POINT I - THE SECOND DEGREE POSSESSION OF A
WEAPON FOR AN UNLAWFUL PURPOSE CONVICTION
MERGES WITH THE SECOND DEGREE BURGLARY
CONVICTION. THE SENTENCE ON THE POSSESSION
OF A WEAPON FOR AN UNLAWFUL PURPOSE
CONVICTION S[H]OULD BE VACATED. (Not Raised
Below)
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POINT II – PURS[U]ANT TO THE DECISIONS IN
STATE V. HERNANDEZ[1] AND STATE V. RIPPY[2]
DEFENDANT IS ENTITLED TO ADDITIONAL JAIL
CREDIT ON INDICTMENT NO. 10-12-2796. (Not
Raised Below).
II.
The overriding principle of merger analysis is that "an
accused [who] committed only one offense . . . cannot be
punished as if for two." State v. Tate, 216 N.J. 300, 302
(2013) (citing State v. Davis, 68 N.J. 69, 77 (1975)).
As such, merger implicates a defendant's
substantive constitutional rights. Not only
does merger have sentencing ramifications,
it also has a measurable impact on the
criminal stigma that attaches to a convicted
defendant.
[Tate, supra, 216 N.J. at 302-03 (citations
and internal quotation marks omitted).]
N.J.S.A. 2C:1-8 codifies the standards for merging
offenses. However, the parameters of the rule have been
characterized as "mechanical." Tate, supra, 216 N.J. at 307.
Instead, we look to "follow a 'flexible approach' to merger and
consider the elements of the crimes, the Legislature's intent in
creating the offenses and the specific facts of each case."
1
208 N.J. 24 (2011).
2
431 N.J. Super. 338 (App. Div. 2013), certif. denied, 217 N.J.
284 (2014).
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State v. Messino, 378 N.J. Super. 559, 585 (App. Div.), certif.
denied, 185 N.J. 297 (2005).
The Court in Tate applied this "preferred and more flexible
standard," and concluded that defendant's conviction for third-
degree possession of a weapon for an unlawful purpose merged
with his conviction for first-degree aggravated manslaughter.
Tate, supra, 216 N.J. at 307. The Court noted that "[w]hen the
only unlawful purpose in possessing the [weapon] is to use it to
commit the substantive offense, merger is required." Id. at 312
(quoting State v. Diaz, 144 N.J. 628, 636 (1996)).
In the present case, because defendant's sole unlawful
purpose in possessing the weapon was to use it in the burglary,
the State concedes that the two convictions must merge. At
issue, then, is the proper sentence that should attach to the
merged convictions.
Relying on Tate, defendant argues that the second-degree
possession of a weapon for an unlawful purpose conviction merges
with his second-degree burglary conviction. Consequently, he
contends that the proper sentence for the merged offenses is the
four-year prison term imposed for the burglary, subject to a
NERA eighty-five percent parole disqualifier. However, the
State notes that while the parole ineligibility component of the
burglary sentence exceeds the three-year minimum term for the
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weapon offense under the Graves Act, the four-year burglary
sentence is less severe than the five-year prison sentence for
the weapon offense. Under these circumstances, the State argues
that the more serious aspects of each sentence should survive
merger. Accordingly, the State submits that on his merged
convictions, defendant should be resentenced to a five-year
prison term, four years of which are subject to NERA.
We find support for the State's position in State v.
Dillihay, 127 N.J. 42 (1992). In Dillihay, the Court addressed
the issue of the appropriate sentence to be imposed when a
defendant's conviction for a lesser-degree school-zone offense
that carried a statutory mandatory minimum prison term merged
with a higher-degree narcotics-related offense having no minimum
term. Id. at 44-45. In such instance, the Court concluded that
the maximum sentence on the higher offense and the mandatory
minimum sentence on the lesser offense both survive. Id. at 56.
Further, as one commentator has observed:
The appropriate rule is that the single
offense for which defendant is found liable
in the last analysis is the most serious of
the offenses being merged, i.e. the one
which provides the most severe sentence.
Occasionally one aspect of a sentence for
one of the offenses being merged will be
more severe than that for the other offense
and a second aspect will be less severe. In
such a case, the more severe aspects of each
sentence should survive merger.
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[Cannel, New Jersey Criminal Code Annotated,
comment 9 on N.J.S.A. 2C:1-8 (2014-15).]
We find this logic persuasive. On the specific facts of
this case, we conclude that imposing the more severe aspects of
the sentence for each offense is consistent with the parties'
plea agreement. As noted, when the terms of the plea agreement
were placed on the record, defense counsel stated that defendant
would receive an aggregate five-year prison sentence. He would
further be required to serve eighty-five percent of the four-
year burglary sentence under NERA, or three years, four months,
and twenty-six days, before being eligible for parole. In
accepting the plea, the judge reviewed these terms with
defendant and asked if he understood them, to which defendant
responded, "Yes." We thus discern no prejudice to defendant,
since the result we reach is precisely that which he bargained
for.
Accordingly, the matter is remanded for correction of the
JOC on Indictment No. 11-08-1894 to reflect that the conviction
for possession of a weapon for an unlawful purpose merges with
the burglary conviction. On the merged convictions, the court
shall modify defendant's sentence to a five-year term of
imprisonment, of which four years shall be subject to an eighty-
five percent parole ineligibility period under NERA.
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III.
The parties agree on the additional jail credits to which
defendant is entitled. Accordingly, our remand further directs
that the JOC on Indictment No. 10-12-2796 be amended to reflect
an additional 162 days of jail credit from May 27, 2011 to
November 4, 2011.
Remanded.
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