On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-07-1206.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Wecker and Graves.
Defendant was convicted of burglary and third-degree aggravated assault. On defendant's direct appeal, we vacated defendant's burglary conviction. On remand the trial judge increased the sentence for aggravated assault from five years with two-and-one-half years without parole eligibility to an extended term nine-year sentence with two-and-one-half years to be served before parole eligibility, the same aggregate sentence that had been imposed before the burglary conviction was reversed. Defendant argues that the revised sentence, including the increased sentence for the aggravated assault, violates his state and federal constitutional double jeopardy and due process rights, and that "this offense and this offender do not warrant a persistent offender discretionary extended term, and the trial court abused its discretion in imposing a nine-year extended term," particularly because the trial judge initially denied the State's application for an extended term. By supplementary letter brief, the defendant further argues that the "imposition of the discretionary offender extended term violated defendant's constitutional rights to trial by jury and due process of law" under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), because the presumptive term cannot be raised without a required jury fact-finding and that the sentence must be reduced to four years. We conclude that an extended term was appropriately imposed on the remand but we remand again for resentencing in light of State v. Natale, __ N.J. __ (2005) (Natale II).
Defendant was convicted at a jury trial of third degree burglary and third degree aggravated assault. At sentencing, the trial judge denied the State's motion for an extended term sentence under the persistent offender statute, N.J.S.A. 2C:44-3a. The judge concluded that given defendant's criminal record, the statutory predicates for imposing an extended term sentence had been satisfied. However, the judge was "not satisfied that under the circumstances of this particular case that [he] need[ed] [to impose] additional time to protect the public," apparently because of his ability to impose consecutive ordinary term sentences for the two crimes.
The court found these aggravating factors to be applicable: N.J.S.A. 2C:44-1(a)(3), the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior record and the seriousness of the crimes of which he was convicted, and N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. The court also found one mitigating factor, that defendant's imprisonment "would entail excessive hardship to himself or his dependents," N.J.S.A. 2C:44-1b(11), based on the fact that defendant would not be able to support his children. However, the judge was "clearly convinced" that the aggravating factors outweighed the sole mitigating factor, and concluded that, "although defendant qualifies as a persistent offender, the Court has sufficient penal exposure as a result of the conviction [sic] to protect the public." The judge considered "the burglary and the aggravated assault which took place [thereafter] on the street as deserving separate punishments," and imposed a five-year term, with two-and-one-half years without parole, to be served on the aggravated assault conviction, and a consecutive four year term on the burglary conviction. The aggregate term imposed therefore was nine years, with two-and-one-half years to be served without parole.
Defendant appealed to us and, in an unpublished decision, we affirmed the assault conviction, vacated the burglary conviction based on insufficient evidence to sustain the conviction,*fn1 and "remanded for entry of an amended judgment of conviction." State v. Young, No. A-5682-00T4 (App. Div. March 6, 2003) (slip op. at 8-10). In addressing defendant's sentence, we were "satisfied the judge's findings on the aggravating and mitigating factors were based on competent and credible evidence in the record . . . and [the sentence] does not constitute an abuse of discretion," and because the burglary conviction was vacated noted the possibility that the issue of an extended term could be "revisit[ed]" on the remand. The matter was therefore remanded "for entry of an amended judgment of conviction and any other appropriate proceedings."
The prosecutor thereafter renewed his motion for imposition of an extended term. At defendant's resentencing in May 2003, the trial judge again found that defendant qualified for an extended term sentence because of his status as a persistent offender. He further noted that the "reversal of the burglary count [by this court] undermined [the trial court's] rationale in not imposing the extended term," and concluded that he would impose an extended term even though he had not done so when he first sentenced defendant. He further concluded that a five year sentence for the aggravated assault charge, the ordinary maximum for a third degree crime, was "inadequate to protect the public" and stated that he would have granted the original extended term motion had the assault been the "only" offense before him at that time.
The court then found that the same aggravating and mitigating factors applied, notwithstanding the reversal of defendant's burglary conviction, and that an extended term above the presumptive term of seven years was appropriate based on aggravating factors three, six and nine as previously found, and independent of the convictions which qualified defendant as a persistent offender. Therefore, the judge imposed a nine-year extended term sentence on the third degree aggravated assault conviction. After noting that he was bound by the law not to increase the original parole ineligibility period, the court imposed a parole ineligibility term of two-and-one-half years on the nine year sentence. Accordingly, the same aggregate sentence was imposed on remand. Appropriate fines and penalties were also imposed.
Defendant first asserts that the imposition of a more severe sentence on the assault conviction upon his resentencing violated his ...