                                NOT FOR PUBLICATION WITHOUT THE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-4940-17T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

KHALID B. DECKER,

     Defendant-Appellant.
_____________________________

                   Submitted March 3, 2020 - Decided April 9, 2020

                   Before Judges Accurso and Gilson.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 16-06-0837.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Al Glimis, Designated Counsel, on the
                   brief).

                   Esther Suarez, Hudson County Prosecutor, attorney
                   for respondent (Rookmin Cecilia Beepat, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Khalid B. Decker entered a negotiated plea to third-degree

possession of a shotgun without a firearm purchase identification card,

N.J.S.A. 2C:39-5(c)(1), in exchange for the State's dismissal of two other

charges, a certain persons offense, N.J.S.A. 2C:39-7(b)(1), and possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(2), and the State's

recommendation of a three-year prison sentence with one year of parole

ineligibility in accordance with the Graves Act. Defendant also reserved the

right to seek review of the prosecutor's denial of a Graves Act waiver. The

trial court denied defendant's motion on the waiver, and we denied his motion

for leave to appeal.

      By the time of defendant's sentencing, which was conducted by a

different judge, the parties realized that the offense to which defendant pleaded

guilty did not come under the Graves Act. 1 The prosecutor explained the State

had agreed to dismiss the certain persons charge, which would have resulted in

defendant serving five years in State prison, N.J.S.A. 2C:39-7(b)(1), so long as

defendant would acknowledge in his plea that the shotgun was loaded at some



1
  N.J.S.A. 2C:43-6 was amended in 2013 to provide that the court shall not
impose a mandatory sentence for violation N.J.S.A. 2C:39-5(c)(1). See
L.2013, c. 113, § 2, eff. Aug. 8, 2013.


                                                                          A-4940-17T1
                                       2
point while in his possession, although it was not loaded when he transferred it

to his brother for sale to a third person,2 thereby justifying the State's

recommended sentence under the Graves Act.

      Defendant upheld his agreement and admitted to the judge taking his

plea that the shotgun had been loaded at some point during the time he

possessed it. But, as the prosecutor explained to the sentencing judge,

defendant was never indicted for the Graves Act offense of possession of a

loaded shotgun, N.J.S.A. 2C:39-5(c)(2). The State argued "defendant could

not plead to the Graves offense" for which he was not indicted, and that

sentencing defendant in accordance with his plea would result in "an illegal

sentence." The State made an oral motion "that . . . defendant's plea be

vacated and everybody starts from square one since the meeting of the minds

was incorrect."




2
  Because the facts of the offense are not relevant to the issue on appeal, we
do not recount them. Suffice it to say the parties agree that defendant, who
had a significant prior criminal history, had not been convicted of an offense in
more than ten years when his brother, the target of a firearms trafficking
investigation, called to ask whether defendant was interested in selling his
shotgun. That call, which was intercepted on a wiretap, led to defendant's
brother selling the shotgun to a confidential informant. Defendant was not
otherwise implicated in his brother's activities.


                                                                             A-4940-17T1
                                         3
      The judge denied the motion and sentenced defendant to three years in

State prison with one year of parole ineligibility in accordance with his plea

agreement. Although finding mitigating factors seven, eight, nine, ten and

eleven outweighed aggravating factors three, six, and nine, which would

ordinarily result in a "probationary sentence . . . be[ing] more appropriate ," the

judge explained she was "clearly convinced" she was required "to impose by

law the sentence of three years with one-year parole ineligibility." The judge

granted defendant's motion to stay the sentence pending appeal.

      Defendant now appeals his sentence, raising a single issue:


            SINCE, CONTRARY TO THE BELIEF OF THE
            SENTENCING COURT, DEFENDANT WAS NOT
            CONVICTED OF A GRAVES ACT OFFENSE, AND
            SINCE THE SENTENCING COURT MADE CLEAR
            THAT IT WOULD IMPOSE A PROBATIONARY
            SENTENCE ABSENT THE GRAVES ACT, THIS
            COURT SHOULD EXERCISE ITS ORIGINAL
            JURISDICTION AND SENTENCE DEFENDANT
            TO ONE YEAR PROBATION. (Not Raised Below)

                 A.    Mr. Decker was not Convicted of a
            Graves Act Offense.

                 B.    The Plea Agreement Should not be
            Vacated Because This is a Legal Sentence With an
            Adequate Factual Basis.




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                                         4
The State has not filed a cross-appeal or explained why it would have the right

to do so here. See State v. Veney, 327 N.J. Super. 458, 460 (App. Div. 2000).

It nevertheless asks that we vacate the plea because "[b]oth parties entered into

a plea agreement without full understanding of the statutory implications" and

"remand so that [defendant] can enter into a plea in accordance with the law."

Having considered the parties' arguments, we vacate defendant's sentence only

and remand for resentencing.

      The State does not dispute that defendant provided an adequate factual

basis for the offense for which he was indicted and agreed to plead guilty, and

that the sentence imposed comported with the Code. Accordingly, we find no

basis on which to vacate the plea. That the parties and the court failed to

appreciate that the 2013 amendments to N.J.S.A. 2C:43-6 exempted persons

convicted of the unlawful possession of an unloaded shotgun from the

mandatory sentences imposed under the Graves Act does not impugn the

validity of defendant's plea to that offense or make the recommended sentence

the court imposed an illegal one. See Veney, 327 N.J. Super. at 462.

      Notwithstanding that defendant's sentence is not illegal under the Code,

and indeed the State is free to argue for its imposition on remand, the judge's

erroneous belief that she had no choice but to impose a term of imprisonment


                                                                         A-4940-17T1
                                        5
requires our setting it aside. We, however, decline defendant's request that we

exercise original jurisdiction to resentence him to the probationary term he

asserts the judge would have imposed "absent the Graves Act." Although we

undoubtedly have the power to modify a sentence under Rule 2:10-5, our

Supreme Court has directed that our "exercise of that jurisdiction 'should not

occur regularly or routinely,'" and instead that "a remand to the trial court for

resentencing is strongly to be preferred." State v. Kromphold, 162 N.J. 345,

355 (2000) (quoting State v. Jarbath, 114 N.J. 394, 410-11 (1989)). Although

the matter has been pending for some time, the indictment having been

returned nearly four years ago, defendant is not confined, and he offers us no

sound basis to exercise original jurisdiction here.

      Accordingly, we vacate defendant's sentence and remand for

resentencing in accordance with State v. Randolph, 210 N.J. 330, 354 (2012).3

We do not retain jurisdiction.

      Vacated and remanded.




3
  The parties agree the judgment of conviction should reflect the original
charge of N.J.S.A. 2C:39-5(c)(1) in the third degree as listed in Indictment 16-
06-0837.
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