State v. Hill

742 A.2d 605, 327 N.J. Super. 33
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 29, 1999
StatusPublished
Cited by3 cases

This text of 742 A.2d 605 (State v. Hill) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hill, 742 A.2d 605, 327 N.J. Super. 33 (N.J. Ct. App. 1999).

Opinion

742 A.2d 605 (1999)
327 N.J. Super. 33

STATE of New Jersey, Plaintiff-Respondent,
v.
Jeffrey R. HILL, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued December 8, 1999.
Decided December 29, 1999.

*606 Abby P. Schwartz, Assistant Deputy Public Defender, for appellant (Ivelisse Torres, Public Defender of New Jersey, attorney; Ms. Schwartz, on the brief).

Wendy Alice Way, Deputy Attorney General, for respondent (John J. Farmer, Jr., Attorney General of New Jersey, attorney; Ms. Way, on the brief).

Appellant filed a pro se supplemental brief.

Before Judges KING, KLEINER and PAUL G. LEVY.

The opinion of the court was delivered by KING, P.J.A.D.

I

This drug distribution case presents an enhanced sentence issue under N.J.S.A. 2C:43-6(f).[1] The only express statutory *607 predicate for an enhanced sentence for the specified drug distribution offenses is a "previous conviction." In this case, the second offense was committed before the conviction for the first, or predicate, offense was obtained. We conclude that the statute does not compel chronological necessity, i.e., that the conviction for the first offense be formalized before the conviction for the second offense is obtained. So long as a defendant "has been previously convicted," see N.J.S.A. 2C:43-6(f), of a predicate offense at the time of sentencing, he qualifies for an enhanced sentence. We decline defendant's invitation to read conditions into the statutory scheme not in the text adopted by the Legislature. We affirm defendant's enhanced sentence.

II

In June 1997 the Prosecutor's Narcotic Strike Force was conducting investigations in the Parkside Apartment Complex in Franklin Township in response to complaints about an "open-air" drug market. On June 18 at about 1 p.m. the Strike Force officers set up a surveillance and observed a man, identified as Rexton Burton, walk into the front porch of apartment 154 at the complex on Market Street and start a conversation through the screen door with another man, later identified as defendant, Jeffrey Hill. Eventually, the officers saw defendant hand Burton a "deck" of heroin in exchange for cash. As he was leaving the area, the officers arrested Burton and found him in possession of the heroin he had purchased moments before. State Police laboratory tests confirmed.37 grams of heroin.

Just six days later, on June 24 at about 3 p.m., after observing several narcotics transactions as part of their continuing investigation of the Parkside Apartment Complex, Strike Force officers moved in and arrested several men, including defendant. When defendant was arrested, two decks of heroin lay at the base of the tree where he was sitting. Cyrus Lewis, also arrested, told police that just before his arrest he bought a deck of heroin from defendant. State Police laboratory tests confirmed .41 grams of heroin in the two decks implicating defendant.

At his guilty plea hearing on January 16, 1998, defendant admitted selling heroin on June 18 and 24, 1997. He pled guilty to the crime of third-degree distribution committed on June 18 (No. 97-10-498) and to the crime of third-degree distribution, possession with intent to distribute, and possession of heroin committed on June 24 (No. 97-10-494). This appeal concerns his persistent offender sentence—eight years with a four-year parole ineligibility term, imposed on February 13, 1998 for the June 1997 offenses.

III

In October 1997 the Somerset County Grand Jury returned Indictment No. 97-10-494 against defendant charging him with third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3) (count one); third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3) (count two); and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1)—the June 24, 1997 drug sale. On the same day, the Grand Jury returned

*608 Indictment No. 97-10-498 against defendant charging him with third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(3)—the June 18, 1997 drug sales. On December 5, 1997 defendant pled not guilty to these charges.

As noted, on January 16, 1998 defendant entered a guilty plea to all charges in both indictments. In exchange for his guilty plea, the State agreed to recommend that defendant's aggregate extended-term sentence not exceed eight years in prison with a four-year period of parole ineligibility, imposed concurrently on another sentence he was already serving on another indictment. At the plea hearing, defendant was specifically informed that the terms of the plea agreement called for the imposition of an extended term pursuant to N.J.S.A. 2C:43-6(f) because he had an earlier conviction for a drug offense. The State had filed the motion for the extended term at the time of the guilty plea and personally served defendant. On February 13, 1998 the judge granted the State's motion for the imposition of an extended term as a repeat drug offender, pursuant to N.J.S.A. 2C:43-6(f), over defendant's objection.

On March 13, 1998 Judge Edward M. Coleman sentenced defendant as follows: on Indictment No. 97-10-494, to an extended term of eight years with a four year period of parole ineligibility on the distribution offense (count one) and a concurrent five-year term with a two-and-one-half-year period of parole ineligibility on the possession with intent to distribute offense (count two). Count three (possession) was merged with count two. On Indictment No. 97-10-498, defendant was sentenced to a five-year term in prison with two-and-one-half-year period of parole ineligibility for distribution (count two). The sentences were imposed concurrently to each other and to the sentence defendant was already serving on another indictment. As indicated, in accordance with the plea agreement, defendant's aggregate sentence was eight years in prison with a four-year parole disqualifier. As noted, defendant here challenges the extended term because the conviction for the first offense took place after the conviction for the second offense.

IV

Defendant claims he is not eligible for a sentence as a repeat drug offender because the repeat offenses occurred before he was sentenced for the prior or predicate drug offense. He claims that N.J.S.A. 2C:43-6(f) is geared towards rehabilitation and requires chronological sequence for both offenses and convictions. We disagree. Because of the clear text of the statute, on the factual record in this case, defendant qualifies for an extended term as a repeat drug offender.

On October 10, 1996 defendant had been arrested and charged with his first drug offenses—third-degree possession and possession with intent to distribute. While on bail pending sentencing on these charges, defendant again was arrested on July 18, 1997 and charged with the above-described June 18 and 24, 1997 heroin distribution offenses. Then on September 12, 1997 defendant was sentenced on the guilty pleas he entered in May 1997 for the offenses committed in October 1996. As noted, on January 16, 1998 defendant pled guilty to the two drug offenses based on his July 1997 arrest and thereafter received the repeat or persistent offender sentence he now attacks on this appeal. He claims that his September 12, 1997 conviction was not a "previous conviction" within N.J.S.A.

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742 A.2d 605, 327 N.J. Super. 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hill-njsuperctappdiv-1999.