                                NOT FOR PUBLICATION WITHOUT THE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-0119-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LUIS R. GARCIA, a/k/a RICO
GARCIA, LOUIS GARCIA, and
LOUIS LUISITO,

     Defendant-Appellant.
__________________________

                   Submitted February 4, 2019 – Decided May 8, 2019

                   Before Judges Sabatino and Sumners.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Cape May County, Indictment No. 13-01-
                   0043.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Peter T. Blum, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Jeffrey H. Sutherland, Cape May County Prosecutor,
                   attorney for respondent (Gretchen A. Pickering,
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Following a remand by this court, defendant Luis R. Garcia was re-sentenced

to a thirty-five-year extended prison term, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, for first-degree armed robbery, N.J.S.A. 2C:15-1, and

a concurrent ten-year extended term for second-degree unlawful possession of a

firearm, N.J.S.A. 2C:39-5(b).

      Defendant appeals, arguing:

            POINT I

            [DEFENDANT] SHOULD BE RESENTENCED AGAIN
            BECAUSE THE PARTIES AND COURT AT HIS LAST
            RESENTENCING SEEMED TO INCORRECTLY
            BELIEVE THAT THE COURT COULD NOT CHOOSE
            WHICH COUNT TO SUBJECT TO AN EXTENDED
            TERM. (NOT RAISED BELOW)

            POINT II

            [DEFENDANT] SHOULD BE RESENTENCED AGAIN
            BECAUSE AN UPDATED PRESENTENCE REPORT
            WAS   NOT    PREPARED    AT   HIS  LAST
            RESENTENCING. (NOT RAISED BELOW)

            POINT III

            [DEFENDANT] SHOULD BE RESENTENCED AGAIN
            BECAUSE    THE    RESENTENCING    COURT
            IMPROPERLY FAILED TO PROVIDE REASONS FOR
            FINDING AGGRAVATING FACTOR SIX AND
            APPEARED TO DOUBLE-COUNT [DEFENDANT]'S


                                                                         A-0119-17T4
                                       2
               PRIOR CONVICTIONS IN SO FINDING.                  (NOT
               RAISED BELOW)

               POINT IV

               [DEFENDANT] SHOULD BE RESENTENCED AGAIN
               BECAUSE    HE    RECEIVED     INEFFECTIVE
               ASSISTANCE FROM COUNSEL WHO HAD JUST
               BEEN ASSIGNED TO HIS CASE THE DAY BEFORE,
               WHO WAS UNFAMILIAR WITH THE LAW AND
               FACTS, AND WHO MADE NO SUBSTANTIAL
               ARGUMENTS. (NOT RAISED BELOW)

After reviewing the record in light of the contentions advanced on appeal, we reverse

and remand again for resentencing because the trial judge failed to obtain an updated

presentence report in accordance with State v. Randolph, 210 N.J. 330, 351 (2012).

                                          I.

       We need not detail the procedural history and trial evidence as they are fully

detailed in our unpublished opinion affirming defendant's conviction but reversing

and remanding for resentencing. State v. Ruiz-Negron, No. A-1993-14 (App. Div.

Mar. 10, 2017). A brief summary will suffice.

       At approximately 11:30 p.m., four individuals committed an armed robbery

at a gas mart in Dennis Township. The perpetrators hit a gas mart attendant in the

back of the head with a handgun and took $200 cash from his person and a black

Toshiba laptop computer. The attendant left the country sometime later, and did not

return to testify at trial.

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                                          3
      In an unrelated drug investigation two months after the robbery, police

searched a Woodbine Borough residence pursuant to a warrant and seized a black

Toshiba laptop computer similar to the model stolen from the gas mart. After

obtaining a Communications Data Warrant, officers found pictures of the gas mart

attendant on the laptop, and determined it was the same device that was stolen from

the gas mart. The two individuals who were arrested pursuant to the search gave

statements to officers that linked defendant and co-defendants to the robbery.1

Police subsequently located and arrested defendant and his two co-conspirators.

They were charged in an eight-count indictment arising from the robbery.

      Tried before a jury, defendant was found guilty on six counts, first-degree

armed robbery, second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a), second-degree unlawful possession of a firearm, second-degree

aggravated assault, N.J.S.A. 2C:12-1(b), third-degree theft by an unlawful taking,

N.J.S.A. 2C:20-3, and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-

2 and N.J.S.A. 2C:15-1(a)(1).      Thereafter, the trial judge, following merger,

sentenced defendant as a persistent offender to an extended term of thirty-five years

imprisonment, subject to NERA, for armed robbery, to be served concurrent with a



1
  They subsequently testified to those statements at trial without the State providing
immunity or guaranteeing any reduction in charges as a result of their testimony.
                                                                              A-0119-17T4
                                          4
persistent offender extended term of fifteen years imprisonment for unlawful

possession of a firearm.

      Defendant filed a direct appeal, which was consolidated with the appeals of

his two co-defendants, who were also convicted for the same charges.              All

convictions were upheld, but we reversed the sentences and remanded for

resentencing because the judge, contrary to well-established precedent, imposed two

extended terms of imprisonment on each defendant. Ruiz-Negron, (slip op. at 24-

25). We further stated, "the State may designate the offense to which a single

extended term should apply." Id. (slip op. at 24). Defendant's certification to the

Supreme Court was denied. State v. Ruiz-Negron, 231 N.J. 108 (2017).

      At resentencing on July 21, 2017, three years following defendant's initial

sentencing, the State requested that the judge impose the extended term on the first-

degree armed robbery offense. Defendant did not object.

      The judge applied aggravating factors three, six and nine, but found that no

mitigating factors applied. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); -1(a)(6)

(the extent of defendant's prior criminal record and the seriousness of the current

offense); and -1(a)(9) (the need to deter). He then determined defendant was a

persistent offender under N.J.S.A. 2C:44-3(a), subject to an extended term under

N.J.S.A. 2C:43-7, based on his convictions for: parole violation in November 2006;


                                                                             A-0119-17T4
                                         5
fourth-degree aggravated assault conviction in February 2007, resulting in an

aggregated eighteen-month prison term; and third-degree possession of a dangerous

controlled substance within 1000 feet of a school zone in March 2009, resulting in a

prison term of four years.

      After an analyzing State v. Pierce, 188 N.J. 155 (2006), and State v. Dunbar,

108 N.J. 80 (1987), the judge applied an extended term to the first-degree robbery

offense. He reconsidered the mitigating and aggravating factors, and again found

that no mitigating factors applied, and that aggravating factors three, six and nine

applied, and determined they established a strong need to protect the public by

imposing an extended term against defendant. Following our remand directive, the

judge did not impose an extended term on the unlawful possession of a firearm

offense, but reduced the concurrent prison sentence for the conviction from fifteen

years to ten years.

      This appeal followed.

                                        II.

      We initially point out the State contends that we not consider defendant's

arguments on appeal and should affirm because they were not made during the

resentencing.   Normally, we "will decline to consider questions or issues not

properly presented to the trial court when an opportunity for such a presentation is


                                                                            A-0119-17T4
                                         6
available unless the questions so raised on appeal go to the jurisdiction of the trial

court or concern matters of great public interest." State v. Robinson, 200 N.J. 1, 20

(2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

Nevertheless, under the circumstances of this case, we choose to consider

defendant's arguments.

                                          A.

      In Point I, defendant argues the trial judge implicitly presumed that our

remand required him to apply the extended term sentence to the robbery count and

not the weapons count. Because he allegedly "barely qualifies" as a persistent

offender, defendant maintains that the application of an extended term to the first-

degree robbery offense resulted in an excessive sentence. We disagree.

      Our court must review a trial court's decision to impose an extended term

sentence for abuse of discretion. State v. Young, 379 N.J. Super. 498, 502 (App.

Div. 2005). N.J.S.A. 2C:44-3(a) states:

             The court may, upon application of the prosecuting
             attorney, sentence a person who has been convicted of
             a crime of the first, second or third degree to an
             extended term of imprisonment if . . .

             a. The defendant has been convicted of a crime of the
             first, second or third degree and is a persistent offender.
             A persistent offender is a person who at the time of the
             commission of the crime is [twenty-one] years of age
             or over, who has been previously convicted on at least

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                                          7
               two separate occasions of two crimes, committed at
               different times, when he was at least [eighteen] years of
               age, if the latest in time of these crimes or the date of
               the defendant's last release from confinement,
               whichever is later, is within [ten] years of the date of
               the crime for which the defendant is being sentenced.

Weight is given to "the prosecutor's determination regarding which offense is to be

subject to an extended term[.]"      State v. Thomas, 195 N.J. 431, 436 (2008).

However, should the judge disagree with the State's recommendation and choose to

impose an extended term sentence on a different offense, the reasons must be set

forth on the record, as does the reasons for the sentence. Ibid.

      We discern no abuse of discretion in the trial judge's decision to apply the

extended term to the first-degree robbery charge, as recommended by the State.

Consistent with N.J.S.A. 2C:44-3(a) and his analysis under Dunbar and Pierce, the

judge reasonably determined defendant was a persistent offender due to his

documented criminal history, a balancing of the mitigating and aggravating factors,

and the need to protect the public, and therefore imposed a thirty-five-year NERA

prison term.

                                          B.

      In Point II, defendant contends the judge improperly relied on the presentence

report from the previous sentencing and, as such, did not "assess [him] as he stood

before the court[,]" as required by Randolph, 210 N.J. at 354. Defendant recognizes

                                                                            A-0119-17T4
                                          8
that a judge may rely on a prior presentence report if a short time has passed and

"there is no reason to believe that an updated report would produce new

information." He maintains, however, that because three years have passed since

the initial sentencing hearing, the original presentence report was not reliable, and

he should be resentenced with an updated presentence report. We agree.

      In Randolph, our Supreme Court held that "where the remand order is . . .

limited in scope or is designed to correct a technical error," a defendant must "be

assessed as he stands before the court at resentencing." Id. at 351. "[D]epending on

the scope of the remand, the presentence report may be updated" at the discretion of

the trial judge. Id. (quoting State v. Tavares, 286 N.J. Super. 610, 616 (App. Div.

1996)). Our remand did not limit the resentencing to those factors that existed when

defendant was initially sentenced.     Compare Ruiz-Negron, (slip op. at 24-25)

(remanding for resentencing only to "correct the error" of applying two extended

terms) with State v. Natale, 184 N.J. 458, 495-96 (2005) (specifying that, on remand,

trial court was to make its determination "based on the record at the prior sentencing"

and was told to "not make new findings concerning . . . aggravating and mitigating

factors.")

      In ordering resentencing, we were "satisfied that the sentencing [judge]

appropriately considered and weighed the pertinent aggravating and mitigating


                                                                               A-0119-17T4
                                          9
factors for each defendant" and concluded that "all of the defendants have criminal

records that qualify them as persistent offenders eligible for extended terms." Ruiz-

Negron, (slip op. at 9). Yet, our remand was not based upon technical errors, as the

judge on resentencing was required to determine which offense to apply a single

extended term to. As noted, the judge did an analysis under Pierce and Dunbar, and

reconsidered the mitigating and aggravating factors. Thus, it was incumbent upon

the judge to view defendant as he appeared at resentencing, which in turn warranted

obtaining a new presentence report.

                                          C.

      In Point III, defendant contends that he should be resentenced because the

judge improperly imposed aggravating factor six (prior criminal history and

seriousness of the current offense). He asserts that the two prior criminal offenses

the judge used to apply aggravating factor six were the same offenses that qualified

him for the extended term and, therefore, were double-counted. We conclude that

this argument is without sufficient merit to be discussed in this opinion. R. 2:11-

3(e)(2).

                                          III.

      In his last brief point, defendant contends his counsel at resentencing was

ineffective because he was not familiar with the facts of the case, the law of the case,


                                                                               A-0119-17T4
                                         10
made no arguments in support of a lower sentence, and failed to indicate that the

judge had the discretion to place the extended sentence on the second-degree

unlawful possession of a firearm charge rather than the first-degree robbery charge.

Claims of ineffective assistance of counsel are typically reserved for a future petition

for post-conviction relief, and not resolved on direct appeal. See State v. Hess, 207

N.J. 123, 145 (2011) (citing State v. Preciose, 129 N.J. 451, 460 (1992)). Only when

the ineffective assistance claim can be determined on the trial record alone is it

appropriate to dispose of the issue on direct appeal. State v. Castagna, 187 N.J. 293,

313 (2006). However, because we are remanding for further resentencing, we need

not determine whether counsel provided ineffective assistance at the initial

resentencing.

      Reversed and remanded for resentencing consistent with this opinion. We do

not retain jurisdiction.




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                                         11
