                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4821-18T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

ALON B. ROLLS,

     Defendant-Appellant.
_______________________

                   Argued February 3, 2020 – Decided March 3, 2020

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Atlantic County, Indictment Nos. 15-12-2996
                   and 16-03-0622.

                   Douglas R. Helman, Assistant Deputy Public Defender,
                   argued the cause for appellant (Joseph E. Krakora,
                   Public Defender, attorney; Douglas R. Helman, of
                   counsel and on the briefs).

                   Regina M. Oberholzer, Deputy Attorney General,
                   argued the cause for respondent (Gurbir S. Grewal,
                   Attorney General, attorney; Regina M. Oberholzer, of
                   counsel and on the brief).

PER CURIAM
      Defendant Alon B. Rolls appeals from an increased sentence imposed

following our remand to reconsider his sentence in light of State v. Shaw, 131

N.J. 1 (1993). We reverse and remand.

      The relevant facts and procedural history are not in dispute. An Atlantic

County Grand Jury returned Indictment No. 15-12-2996, charging defendant

with first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one); and third-degree

possession with intent to distribute an imitation controlled dangerous substance

(CDS), N.J.S.A. 2C:35-11(a) (count two). The grand jury subsequently returned

Indictment No. 16-03-0622, charging defendant and six others with an unrelated

third-degree theft by deception, N.J.S.A. 2C:20-4 and N.J.S.A. 2C:2-6.

      On February 13, 2017, defendant pleaded guilty to count one of

Indictment No. 15-12-2996, amended to second-degree robbery, and the only

count of Indictment No. 16-03-0622. In exchange, the State agreed to dismiss

count two of Indictment No. 15-12-2996 and to recommend a third-degree range

sentence of a three-year term, subject to an eighty-five percent parole

disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,

on the robbery conviction, and a concurrent three-year flat term on the theft by

deception conviction.




                                                                         A-4821-18T1
                                       2
      During the plea colloquy, the State acknowledged its recommendation of

a three-year NERA term on the robbery count and a concurrent three-year flat

term on the theft count. The trial court accepted the plea, finding it was entered

freely, knowingly, and voluntarily, and that defendant understood the sentence

to be imposed. At defendant's request, the court agreed to delay sentencing

because defendant had a newborn child and was supporting his family.

      When he appeared for sentencing on May 19, 2017, defendant requested

a further postponement because he was recently employed and wanted to "have

a few more weeks to again keep his family financially afloat." The judge

stated,"[i]f I were to grant it, it would be on the condition of [a] no show/no

recommendation." The following colloquy then took place:

            THE COURT: I'll give you an opportunity to have a
            few more weeks on the street to take care of business,
            but it's on this condition. You got to come back on the
            day I'm about to give you. If you don't, then no hard
            feelings but –

            THE DEFENDANT: I'll give you my word, I'll be here.

            THE COURT: Just want you to understand the State
            can indict you for bail jumping and then when they
            bring you back I can sentence you as I see fit. It might
            be [three years] at [eight-five percent], it might be
            more. So you understand that, sir?

            THE DEFENDANT: Yes, sir.


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                                        3
              THE COURT: Let's postpone the matter [to] June 30th,
              [with a] no show/no recommendation.

      Notably, the State did not request the no show/no recommendation

condition—it was not discussed during the plea negotiations, does not appear in

the plea form, and was not mentioned at the plea hearing. Moreover, the plea

agreement was never formally amended.

      Defendant appeared for his next sentencing date, June 30, 2017, and

requested another postponement due to his family situation, including his then

pregnant fiancée. He claimed to be working seventy hours per week. The State

deferred.     The court initially agreed to the postponement contingent upon

defendant submitting to a substance evaluation and testing clean. Although

defendant admitted he would test positive for marijuana, the court postponed

sentencing to August 18, 2017, and stated, "[h]e continues on the no show/no

recommendation, no new charges and no dope."

      Defendant did not appear for sentencing on August 18, allegedly because

he was in the hospital. The court issued a bench warrant for defendant who

remained a fugitive until arrested four months later by the Unites States

Marshals Service Regional Fugitive Task Force.

      On February 9, 2018, defendant appeared before a different judge for

sentencing.     Defense counsel requested that defendant be sentenced in

                                                                       A-4821-18T1
                                       4
accordance with the plea agreement, despite having not appeared for sentencing.

The State likewise moved for sentencing in accordance with the plea agreement.

It left the impact of no show/no recommendation condition in the court's

discretion.

      Defense counsel explained the court's intention to defendant and reviewed

with him a transcript setting forth the no show/no recommendation condition.

When asked by the court if defendant was ready to proceed, defense counsel

stated, "I advised [defendant] of what the [c]ourt's intentions are and we're

prepared to go forward."

      Notably, the court found the original written plea bargain was in the

interest of justice and presumed to be reasonable. The court nevertheless took

the "position, that when a defendant is advised that they are to be here for

sentencing and they know it's no show/no [recommendation], there's an

enhanced penalty for not showing up." After noting defendant had not sought a

further postponement of the June 30, 2017 sentencing date, the court stated it

was not imposing the recommended sentence. The court stated it intended to

impose an extra year on the robbery count.

      The court noted defendant had incurred fourteen arrests, resulting in five

indictable and four municipal court convictions, relating to theft and CDS


                                                                        A-4821-18T1
                                       5
offenses. The court further noted defendant had served a prison term, been

paroled, and violated parole. The court also stated defendant had a significant

juvenile record, with six adjudications of juvenile delinquency, and served a

term of juvenile detention. The court found aggravating factors three (risk of

re-offense), six (prior criminal record), and nine (need for deterrence), N.J.S.A.

2C:44-1(a)(3), (6), and (9), outweighed the nonexistent mitigating factors.

      Based on the no show/no recommendation condition, the court sentenced

defendant to concurrent four-year NERA terms on the robbery and theft by

deception counts and imposed appropriate assessments.1 The remaining charges

were dismissed.

      Defendant appealed his sentence before an excessive sentencing panel.

We remanded "for reconsideration of defendant's sentence in light of State v.

Shaw, a case we discuss infra in Part II(A)."

      The trial court held a Shaw hearing on May 10, 2019. Defendant testified

his wife was pregnant, he was working to support his family, his father was ill,

and ultimately passed away. Defendant admitted knowing he was supposed to

appear for court but decided he "could not just leave his wife and children



1
  As discussed infra in Part II(B), third-degree theft by deception is not a NERA
offense. See N.J.S.A. 2C:43-7.2(a), (d).
                                                                         A-4821-18T1
                                        6
abandoned like that."    He also stated attempts to reach his attorney were

unsuccessful. Defendant stated that he tried to speak to his attorney to request

additional time but his attorney would not accept his calls or respond to his text

messages because he missed a payment. This led to defendant changing defense

counsel; however, court records revealed his original attorney appeared in court

on the rescheduled sentencing date.

      The court made the following findings at the resentencing following the

Shaw hearing: "imposing a [four]-year term of incarceration on the robbery

charge was significant, but not shocking, because defendant pled guilty to a

second[-]degree crime, but was sentenced in the third[-]degree" and it was

appropriate to increase the sentence by one year, thereby keeping the sentence

in the third-degree range. The court also found defendant was aware of the no

show/no recommendation condition.

      The court concluded that defendant's "conscious decision" not to appear

for sentencing was "unacceptable." The court stated "[d]efendant broke the trust

that was placed in him" and "must now suffer the consequences of his deliberate

failure and conscious refusal to appear for sentencing under the no show/no

recommendation provision."       The court noted defendant's criminal record

militated against downgrading the robbery count for sentencing purposes. It


                                                                         A-4821-18T1
                                        7
concluded the non-existent mitigating factors did not outweigh the aggravating

factors.   The court reasoned that a sentencing downgrade was no longer

warranted because "the requirements of N.J.S.A. 2C:44-1(f)(2) had not been

satisfied." Thus, "defendant must be sentenced in the second[-]degree range."

      The court decided to increase the penalty for the failure to appear from

one to two years and resentenced defendant to a five-year NERA term on the

robbery count. It decreased the sentence on the theft by deception count to a

concurrent three-year NERA term. This appeal followed.

      Defendant raises the following points:

            POINT I
            THE NO SHOW PROVISION WAS NEVER
            INCORPORATED INTO [DEFENDANT'S] PLEA
            AGREEMENT BY THE STATE AND IS
            THEREFORE INVALID.

            POINT II [2]
            IMPOSING     AN ADDITIONAL   YEAR   OF
            INCARCERATION     AFTER    [DEFENDANT]
            VINDICATED HIS RIGHT TO APPEAL IS A
            FLAGRANT VIOLATION OF HIS DUE PROCESS
            AND DOUBLE JEOPARDY RIGHTS (Not Raised
            Below).




2
  As we discuss infra, the State does not oppose a remand on the issue of the
additional fifth year.
                                                                       A-4821-18T1
                                       8
      Generally, we review a criminal sentence for abuse of discretion. State v.

Jones, 232 N.J. 308, 318 (2018).        Our role in reviewing a sentence is to

determine:

             (1) whether the exercise of discretion by the sentencing
             court was based upon findings of fact grounded in
             competent, reasonably credible evidence; (2) whether
             the sentencing court applied the correct legal principles
             in exercising its discretion; and (3) whether the
             application of the facts to the law was such a clear error
             of judgment that it shocks the [judicial] conscience.

             [State v. Megargel, 143 N.J. 484, 493 (1996) (citing
             State v. Roth, 95 N.J. 334, 363-65 (1984)).]

      "We may exercise our original jurisdiction to impose a new sentence

where no further factfinding is required . . . ." State v. L.V., 410 N.J. Super. 90,

109 (App. Div. 2009) (citing State v. Kromphold, 162 N.J. 345, 355 (2000)); see

also R. 2:10-3.

                                        A.

      The trial court unilaterally imposed a no show/no recommendation

condition that was neither part of the plea agreement nor requested by the State.

At sentencing, the State did not request imposition of an increased sentence.

      "The [c]ourt found that imposing a [four]-year term of incarceration on

the robbery charge was significant, but not shocking, because defendant pled

guilty to a second[-]degree crime, but was sentenced in the third[-]degree

                                                                           A-4821-18T1
                                         9
range." The court determined it appropriate to increase the sentence by one year,

thereby keeping the sentence in the third-degree range. It imposed concurrent

four-year NERA terms on the robbery and theft by deception counts. The trial

court deviated from the recommended sentence solely because defendant failed

to appear for sentencing.

      Defendant's first appeal was heard on a sentencing calendar pursuant to

Rule 2:9-11. There, we remanded for reconsideration of defendant's sentence

under the guidelines adopted in Shaw.

      In Shaw, the defendants faced mandatory minimum terms of

imprisonment for CDS offenses; each failed to appear for sentencing. Id. at 4-

6. In each case, the written plea agreements contained a no show/no waiver of

an otherwise mandatory minimum term. Id. at 3. The Court held "that when

integrated under the State v. Vasquez, 129 N.J. 189 (1992), guidelines for valid

law-enforcement purposes, a no-appearance/no waiver provision is valid and

enforceable." Ibid. (footnote omitted).

      The Court adopted the following guidelines:

            Not every violation of the waiver conditions by an
            accused defendant will result in automatic imposition
            of a mandatory sentence. The automatic imposition of
            enhanced punishment for a non-appearance without
            holding a hearing or considering an explanation would
            be unwarranted. The court must provide a fair hearing

                                                                        A-4821-18T1
                                      10
            to determine whether the violation of the terms of the
            arrangement warrants its revocation. The process is
            deliberative, not perfunctory. The court will consider
            the explanation for the non-appearance in the context
            of all the circumstances . . . . The court will then
            determine whether in the circumstances the breach is
            material to the plea and therefore warrants revocation
            of the prosecutor's waiver of mandatory sentence.

            [Id. at 16-17 (citation and footnote omitted).]

      Here, the plea agreement did not include a no show/no recommendation

condition. The State did not seek or urge the court to impose a no show/no

recommendation condition. Rather, the court unilaterally imposed the condition

(albeit without any objection by the parties) when it granted defendant's request

for a delay in sentencing.

      When he finally appeared for sentencing following execution of the bench

warrant, defendant did not move to withdraw his plea and does not seek that

relief on appeal. Instead, he asked the court to proceed with sentencing and

requested that he be sentenced in accordance with the plea agreement. He seeks

the same relief from this court.

      A "sentence based upon a factor which is unrelated to the sentencing

criteria set forth in the Code of Criminal Justice" is improper. State v. Wilson,

206 N.J. Super. 182, 184 (App. Div. 1985) (citing N.J.S.A. 2C:1-1 to 2C:104-

9).   "Nowhere in the code is it suggested that defendant's appearance for

                                                                        A-4821-18T1
                                      11
sentence is one of those criteria." Ibid. (citing Roth; State v. Hodge, 95 N.J. 369

(1984)); but see State v. Subin, 222 N.J. Super. 227, 237-40 (App. Div. 1988)

(finding the defendant's failure to appear for sentencing was relevant to the risk

of reoffending and the need for deterrence). 3        Although the reasons for

defendant's failure to appear for sentencing may be considered, those reasons

"must, however, be relevant to identified sentencing guidelines." Wilson, 206

N.J. Super. at 184. A "sentence based entirely upon nonappearance is an illegal

sentence." Ibid.

      "The trial court must always sentence in accordance with the applicable

sentencing provisions of the Code." Subin, 222 N.J. Super. at 239. Here, the

court expressed its personal position that failure to appear for sentencing

warranted an enhanced sentence. "A sentencing judge's personal views . . .

cannot substitute for the Code's carefully delineated sentencing scheme in this

regard." State v. Ikerd, 369 N.J. Super. 610, 621 (App. Div. 2004). Considering


3
  The facts in Subin are distinguishable. In Subin, the plea agreement contained
a condition that if defendant failed to appear for sentencing or was arrested for
a new offense his aggregate sentence would be increased from seven to ten
years. Id. at 229. We held "that the plea agreement was valid and enforceable
and that the sentence imposed in accordance therewith was legal." Id. at 237.
Here, defendant's plea agreement did not contain a no show/no recommendation
condition, much less a specified alternate increased sentence if he failed to
appear for sentencing. Notably, defendant was not charged with bail jumping
or committing a new offense while a fugitive.
                                                                          A-4821-18T1
                                       12
the circumstances developed at the Shaw hearing, coupled with the absence of

any new charges against defendant while a fugitive, we conclude that

substantially increasing defendant's recommended sentence solely because of

his failure to appear, by enforcing a unilaterally imposed no show/no

recommendation, was an abuse of discretion. Adding an additional year of

prison subject to NERA for the failure to appear is not supported by the record

or the plea agreement, even with defendant's criminal history.

      While the sentencing court was free to impose a sentence different from

the negotiated one, a decision to deviate from the negotiated term had to be

supported by facts and circumstances related to the underlying crimes and the

statutory aggravating and mitigating factors, not to defendant's failure to appear.

The sentencing court's finding that the negotiated term was reasonable and in

the interest of justice conflicts with its decision to impose a harsher term. The

court did not deal separately with punishment for the underlying crimes and

defendant's arrest for failure to appear. Instead, the court conjoined them and

punished defendant by increasing the negotiated term. The court would have

had the authority to do so if the plea agreement had been amended, but that did

not occur here.    We appreciate the court's understandable desire to assure

defendant's appearance, especially after the court had generously granted him


                                                                          A-4821-18T1
                                       13
multiple postponements.      But the manner in which the "no show/no

recommendation" condition was imposed and enforced here was procedurally

flawed.

      We reverse the robbery sentence and remand. On remand, the trial court

shall issue an amended judgment on Indictment No. 15-12-2996, reducing

defendant's prison term on the robbery count to a three-year NERA term.

                                       B.

      For sake of completeness, we also address the one-year longer NERA term

the court imposed on the robbery count. For the following reasons we hold that

the increased sentence was illegal and unconstitutional.

      A court may not impose a "substantially harsher sentence" on remand if

the increased sentence is not required by law or is not supported by "any

evidence of intervening conduct or prior oversight to justify the new sentence."

State v. Heisler, 192 N.J. Super. 586, 592-93 (App. Div. 1984); see also State v.

Pindale, 279 N.J. Super. 123, 128-30 (App. Div. 1995) (holding trial courts,

resentencing a defendant following remand, must overcome a "presumption of

vindictiveness" when imposing a greater sentence than ordered before by

pointing to "specific reasons justifying the increase"). To hold otherwise would




                                                                        A-4821-18T1
                                      14
effectively penalize a defendant for exercising his constitutional right to

challenge his sentence. Heisler, 192 N.J. Super. at 593.

      Defendant's failure to appear for sentencing obviously occurred before he

was sentenced. Moreover, the trial court had already imposed a longer sentence

than the plea agreement recommended due to defendant's failure to appear for

sentencing. There is no evidence of any intervening conduct or prior judicial

oversight to justify the longer sentence imposed by the remand court. To be

sure, a five-year NERA term is substantially harsher than a four-year NERA

term. To that extent, the remand court erred by imposing the increased sentence

on the robbery count. We note the State on appeal recognizes this is problematic

and does not oppose a remand concerning the imposition of the fifth year.

      In addition, imposing a discretionary sentence on remand that increases

the aggregate term of imprisonment violates the federal protection against

double jeopardy. State v. Rodriguez, 97 N.J. 263, 275 (1984).

                                      C.

      The judgment of conviction on Indictment No. 16-03-0622 states that

defendant's three-year prison term for the third-degree theft by deception is

subject to eighty-five percent parole ineligibility and three years of mandatory

parole supervision under NERA. This was error.


                                                                        A-4821-18T1
                                      15
      NERA only applies to enumerated first and second-degree crimes.

N.J.S.A. 2C:43-7.2(a), (d). Where there are convictions for more than one

offense, the judgments should indicate that the eight-five percent parole

ineligibility and mandatory parole supervision applies only to NERA-qualified

offenses. Cannel, N.J. Criminal Code Annotated, cmt. 4 on N.J.S.A. 2C:43-7.2

(2019) (citing State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000)).

      The NERA parole ineligibility and mandatory parole supervision

requirements do not apply to defendant's conviction for third-degree theft by

deception. N.J.S.A. 2C:43-7.2(a), (d). To that extent, that aspect of the sentence

is illegal because it exceeded the penalties authorized by statute. State v.

Schubert, 212 N.J. 295, 308 (2012). An illegal sentence may be corrected at any

time. State v. Tavares, 286 N.J. Super. 610, 619 (App. Div. 1996). Although

the parties did not raise this issue, "a reviewing court is not free to ignore an

illegal sentence," State v. Moore, 377 N.J. Super. 445, 450 (App. Div. 2005),

and should correct it, Tavares, 286 N.J. Super. at 619. On remand, the trial court

shall enter an amended judgment of conviction eliminating the NERA parole

ineligibility and mandatory parole supervision conditions of the theft by

deception sentence.




                                                                         A-4821-18T1
                                       16
      In sum, although we recognize the importance of assuring a defendant's

promised appearance in court, and the absence of objection voiced by defendant

to the unwritten "no show/no recommendation" condition, the enhanced

punishment imposed here does not comport with Shaw and related precedent.

We are also mindful of the detailed justification the trial court expressed in the

judgment of conviction; nevertheless the sentence cannot stand because of the

procedural flaws we have discussed.

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-4821-18T1
                                       17
