The Appellate Division continued in relevant part: Nor do we agree with the PCR court’s analysis, which compared the lack of a “forgiving provision” in the PSL statute with an express waiver provision in the sentencing rule governing extended terms. See R. 3:21-4 (e) and (f) (providing “if the negotiated disposition includes the recommendation of an extended term, the prosecutor’s oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State’s motion”). The inclusion of the waiver provision in a court rule is not indicative of the Legislative intent of a statute.
Nonetheless, we disagree with the State that the negotiated plea agreement substituted for the State’s obligation to move for PSL. Although the plea agreement and the court expressly stated defendant’s plea subjected him to PSL – as defendant acknowledged during the plea hearing – imposition of PSL is not mandated under N.J.S.A. 2C:43-6.4. Neither the plea agreement nor the court indicated defendant waived the sentencing court’s ability to “find on the record that the special sentence was not needed to protect the community or deter . . . defendant from future criminal activity.” N.J.S.A. 2C:43-6.4. At sentencing, the court failed to engage in that analysis. But that omission does not render defendant’s sentence illegal here, where PSL is permitted.
Accordingly, we reverse the PCR court’s determination that defendant’s sentence was illegal, but we remand to for a limited resentencing proceeding for the trial court to consider whether it would have imposed PSL when it sentenced defendant. In that regard, the trial court should consider whether PSL was “not needed to protect the community or deter . . . defendant from future criminal activity” under the PSL statute. Unlike resentencing for an illegal sentence, however, on remand the trial court should not “view defendant as he stands before the court on that day.” State v. Randolph (2012). Instead, we direct the trial court to determine the applicability of the PSL provision “from the vantage point of the original sentencing.”
Reversed and remanded. We do not retain jurisdiction.
This case will likely be appealed to the New Jersey Supreme Court. It involves issues of first impression, cross-appeal issues, and a holding that may conflict with the New Jersey Supreme Court’s rationale in State v. Randolph.
