                   NOT FOR PUBLICATION WITHOUT THE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




                                               2                                    A-5490-12T4
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.




                                     3                            A-5490-12T4
    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)




                                      4                                A-5490-12T4
            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).



                                         5                                A-5490-12T4
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




                                        6                           A-5490-12T4
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.




                                             7                                          A-5490-12T4
            [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.




                                       8                               A-5490-12T4
                              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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