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State v. Pennington

July 14, 1998

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JAMES D. PENNINGTON, DEFENDANT-RESPONDENT.



The opinion of the court was delivered by: Coleman, J.

Argued March 17, 1998

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 301 N.J. Super. 213 (1997).

The opinion of the Court was delivered by

The important issues raised in this appeal are whether life imprisonment is the presumptive extended term requiring twenty-five years of parole ineligibility for a persistent offender convicted of first-degree kidnapping and whether a rejected plea offer may be considered by an appellate court when determining the excessiveness of sentences. The Appellate Division did not address the first issue and the panel was divided over the second. We hold that life imprisonment is the presumptive extended term for first-degree kidnapping for a persistent offender and that a twenty-five year bar to parole eligibility is discretionary. We also hold that a rejected plea offer is not relevant to whether a sentence imposed following a trial is excessive.

I.

This appeal involves four criminal episodes that occurred in 1992 on November 22, December 8, and December 15, at the Marriott Residence Inn and the Ramada Inn, both of which are located on the Route 1 Princeton-South Brunswick corridor.

On November 22, 1992, James R. Linsell, the Residence Inn chief engineer responsible for maintaining the hotel's physical plant, spent the night in Room 1412. Between 5:00 and 5:30 a.m., defendant burglarized that room while armed with a knife that he used to threaten Linsell. Defendant gained entry into the room by knocking on the door and pretending to be one of the hotel's security staff. When Linsell opened the door, defendant forced his way inside.

Also on November 22, 1992, Derrick Kysar and Vincent Lyles occupied Room 541 at the Ramada Inn, approximately 1.7 miles from the Residence Inn. During the early morning hours of that day, defendant burglarized Room 541 and robbed Kysar and Lyles of their money and other property while threatening them with a knife. Defendant tied their hands with rope and taped their feet together to facilitate his escape.

The third episode occurred on December 8, 1992, while Barbara G. Dreher of Texas was staying in Room 1113 at the Residence Inn. Defendant allegedly burglarized her room while she was not present and stole jewelry and several credit cards. The fourth episode occurred seven days later, on December 15, 1992, when defendant pushed Aline Dossous, a housekeeping employee at the Residence Inn, into Room 421 and struggled with her. She managed to free herself and escape.

The episodes were tried under two indictments returned by two Grand Juries sitting in Middlesex County. Defendant was first indicted under Indictment #224-01-93 which did not include charges of kidnapping, robbery, or criminal restraint. Approximately fourteen months later, however, Indictment #432-3-94 was returned charging defendant separately for the offenses related to Lyles and Kysar, including kidnapping and robbery. The second indictment superseded six counts of the first indictment. The indictments were consolidated for trial.

Defendant was tried on six charges under Indictment #224-01-93 that involved Linsell, Dreher and Dossous as victims:

Count One--second-degree burglary while armed with a weapon, against Linsell, contrary to N.J.S.A. 2C:18- 2;

Count Two--fourth-degree unlawful possession of a weapon (knife), in conjunction with Count One, contrary to N.J.S.A. 2C:39-5d;

Count Three--second-degree possession of weapon (knife) for an unlawful purpose, in conjunction with Count One, contrary to N.J.S.A. 2C:39-4d;

[Counts Four through Nine that related to Lyles and Kysar were dismissed prior to trial and were superseded by the charges filed in Indictment #432- 3-94];

Count Ten--third-degree burglary against Dreher, contrary to N.J.S.A. 2C:18-2;

Count Eleven--third-degree theft by unlawful taking of Dreher's property, contrary to N.J.S.A. 2C:20-3; and

Count Twelve--second-degree burglary (Dossous) alleging bodily injury, contrary to N.J.S.A. 2C:18- 2.

Under Indictment #432-3-94, relating to Lyles and Kysar, defendant was tried on the following offenses:

Count One--second-degree burglary, contrary to N.J.S.A. 2C:18-2;

Counts Two and Three--first-degree armed robbery, contrary to N.J.S.A. 2C:15-1;

Counts Four and Five--first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b;

Counts Six and Seven--third-degree criminal restraint, contrary to N.J.S.A. 2C:13-2b;

Count Eight--third-degree possession of a weapon (knife) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d;

Count Nine--fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d.

Under Indictment #224, the jury found defendant guilty of second- degree burglaries of Linsell, the first victim, and Dossous, the housekeeper, fourth-degree unlawful possession of a knife, second-degree possession of the knife for an unlawful purpose, and receiving stolen property, a disorderly persons offense. He was acquitted of burglarizing the room of the third victim, Dreher. After properly merging some of the offenses, defendant was sentenced on each of the two second-degree burglaries to consecutive ten year terms of imprisonment with five years of parole ineligibility. The court found two aggravating factors: the risk that defendant will commit another offense and the need for deterrence. The court also found that Dossous was frightened. There were no mitigating factors.

Under Indictment #432, charging the more serious offenses against the two victims robbed at knife point and confined to their room (the kidnappings), the jury found defendant guilty on all charges. Prior to sentencing, the prosecutor filed a motion to have defendant sentenced to an extended term as a persistent offender. Although the prosecutor's motion did not specify the offense for which an extended term was sought, the motion papers and transcript of the motion proceedings reveal that the prosecutor sought to have defendant sentenced to an extended term for kidnapping pursuant to N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7a. Defendant's status as a persistent offender was based on his age at the time the instant offenses were committed, two prior convictions for offenses on two separate occasions that were committed at different times when he was at least eighteen years old, and the fact that the present offenses occurred within ten years of his release on parole.

The prosecutor relied upon the following two prior convictions in support of the motion:

a) On July 10, 1978 defendant was sentenced on Count Two of Middlesex County Indictment 519-76, of Rape While Armed, N.J.S.A. 2A:138-1, :151-5; Somerset County Indictment 126-77J, Robbery, N.J.S.A. 2A:141- 1; Somerset County Indictment 142-77J, Armed Robbery, N.J.S.A. 2A:141-1, :151-5; and Somerset County Indictment 143-77J, Armed Robbery, N.J.S.A. 2A:141-1, :151-5.

b) On June 1, 1987, defendant was sentenced on Counts One, Two and Three of Middlesex County Indictment 333-3-86, charging Burglary, N.J.S.A. 2C:18-2; Aggravated Assault, N.J.S.A. 2C:12-1b(2); and Possession of a Weapon for an Unlawful Purpose, N.J.S.A. 2C:39-4d.

During a sentencing hearing conducted on August 25, 1994, defense counsel conceded that defendant was statutorily eligible for a discretionary extended term as a repeat offender pursuant to N.J.S.A. 2C:44-3a because defendant had at least two prior convictions for two crimes committed at different times after his eighteenth birthday.

When granting the State's motion, the sentencing court concluded that it would impose an extended term on the kidnapping offenses primarily because of the need for deterrence for the public's protection. Although not explicit, it is implicit from the sentencing transcript that the trial court was aware that extended term sentencing involves a multi-step process.

Counsel for defendant argued that the maximum extended term penalty for first-degree kidnapping was "life with parole ineligibility for twenty-five years. The presumptive sentence would be fifty years with parole ineligibility of twenty years. And the minimum sentence would be twenty years. [There is a] vast range left in the discretion of the court [in which] the sentence should fall." Counsel urged the court not to impose a life sentence because defendant did not physically harm the victims, and he was not armed with a firearm when committing the kidnappings. Counsel maintained that the kidnapping "was as close to the borderline as you can possibly get" and that the duration of the restraint lasted only minutes. The prosecutor, on the other hand, urged the court to sentence defendant for kidnapping "to imprisonment for the maximum term that is authorized in this case which is thirty years to life."

On Indictment #432, the court imposed three extended terms. For the second-degree burglary of Lyles and Kysar's room, the court imposed a term of twenty years and concurrent terms of life with twenty-five years of parole ineligibility on the first-degree kidnappings. The court explained that it imposed twenty-five years of parole ineligibility because it was the court's impression that the statute required those parole bars for an extended term of life. The court either merged or imposed concurrent terms on the other offenses. The aggregate sentence on the two indictments was life plus twenty years with thirty-five years of parole ineligibility.

In a reported opinion, a divided panel of the Appellate Division agreed with defendant's argument that his "extended term sentence of life imprisonment with a 25 year mandatory minimum plus two consecutive sentences totaling 20 years with a 10-year mandatory minimum was manifestly excessive." State v. Pennington, 301 N.J. Super. 213, 215 (1997). Although all of the convictions were affirmed, all of the sentences were vacated and the case remanded for resentencing because of "errors in the sentence, an inadequate statement of reasons, and the excessive aggregate sentence." Id. at 216. In concluding that the maximum sentences shocked the judicial conscience, the majority reasoned that the "kidnapping convictions were established by minimal facts necessary to establish the element of restraint," and that "[s]entencing defendant to the top of the twenty-years-to-life extended term range [was] unreasonably harsh," particularly where, as here, the "extended life term requires the sentence to include twenty-five years without parole." Id. 217-18. The majority also relied on the "extreme ...


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