May 16, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAKEEM F. TOLIVER, DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAKEEM TOLIVER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 04-09-1279 and 05-01-0145.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically March 28, 2007
Before Judges Lefelt, Parrillo and Sapp-Peterson.
In these two appeals, consolidated for purposes of decision, defendant Hakeem Toliver challenges his convictions, after trial by jury, stemming from three incidents occurring on separate dates. The first two incidents involved the sale of crack cocaine and marijuana to undercover police officers (A6018-04-T4), and the third involved the spitting at a police officer who was returning him to his cell following a municipal court appearance (A6465-04-T4). In these appeals, defendant advances various arguments seeking to reverse his convictions and in particular also claims that the trial judge imposed an unconstitutional and "manifestly excessive" sentence of two consecutive seven-year flat prison terms for the second-degree cocaine/marijuana convictions, and a consecutive eighteen-month prison term, with a nine-month parole disqualifier for the fourth-degree spitting conviction.*fn1 We affirm defendant's convictions, along with the aggregate fourteen-year imprisonment portion of the sentence. However, because of State v. Natale, 184 N.J. 458 (2005), a decision issued by the Supreme Court after the trial judge sentenced defendant, we are compelled to remand for the trial court to reconsider the portion of the sentence dealing with the fourth-degree spitting conviction.
After carefully considering each argument defendant has advanced in both appeals in light of the record and the pertinent law, we are convinced that, except for the Natale argument in the fourth-degree spitting appeal, they all lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We nevertheless briefly discuss defendant's ineffective assistance and sentencing arguments.
With regard to defendant's fourth-degree conviction for spitting on a police officer, N.J.S.A. 2C:12-13, defendant argues that counsel was ineffective because he failed to object to portions of the prosecutor's summation and to argue after trial that the jury's verdict was against the weight of the evidence. To establish a prima facie case of ineffective assistance, defendant must demonstrate two factors: first, that defense counsel's performance was deficient; and second, that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed. 2d 674, 693, 698 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant claims counsel was ineffective because he should have objected to the following statements made by the prosecutor: that the officers' testimony was corroborated by a videotape and the consistency of their stories, that defendant did not like being controlled by others, and that the Legislature passed a law to criminalize spitting on a law enforcement officer. Despite defendant's argument, we conclude that these statements were entirely proper, and any objection proffered would have made no difference. Therefore, defendant's ineffective assistance claim pertaining to these statements fails.
For the same reason, defendant's contention that counsel erroneously failed to move to vacate the jury's verdict as being against the weight of the evidence also was not ineffective assistance. Because there was more than enough evidence supporting the jury's verdict, any such motion would have surely been denied. Dolson v. Anastasia, 55 N.J. 2, 6 (1969).
Regarding defendant's sentence, we will reverse if the sentence violates the guidelines, the aggravating and mitigating factors were not based upon competent credible evidence, or the sentence was clearly unreasonable and shocks the judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984). Applying these standards to the sentence imposed, we conclude that there is no reason to reverse the portion of defendant's sentence establishing a fourteen-year aggregate prison term.
We do not find an abuse of discretion even though defense counsel requested a much more lenient concurrent sentence of five and seven years because she characterized the incidents as "the same continuing source of activity." Defense counsel also requested drug treatment, remarked that the amounts sold were relatively small, and requested that the court take into account the effect defendant's addiction had on his actions. Defendant's mother also requested leniency.
Nevertheless, as the trial court noted, defendant had a "significant" record, including "twenty-three arrests as a juvenile, twenty-one arrests as an adult and six convictions including the present offense and all of this with his age only being 29," which is aggravating factor six. The court also found "no mitigating factors . . . and [several other aggravating factors including] a risk that this defendant will commit another offense," which is aggravating factor three. The judge further found that defendant was "involved in organized criminal activity." Furthermore, the judge believed there was a "need [to] deter this defendant and others from violating the law," which is aggravating factor nine. Significantly, in finding that the aggravating factors substantially outweighed the nonexistent mitigating factors, the court noted defendant "ha[d] used, according to the record, five prior, five other names, one other social security number; but the real issue here is the extent of his record."
We disagree with defendant that he was entitled to mitigating factors four or eleven, however, we do agree with defendant that the court improperly considered aggravating factor eleven, that "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business." N.J.S.A. 2C:44-1a(11). Because imprisonment was presumptively required by the guidelines for a second-degree crime, this factor should not have been considered. See State v. Dalziel, 182 N.J. 494, 502-03 (2005). Even so, it is clear to us that the other factors were amply supported by "competent credible evidence in the record," and more than adequately justified the seven-year flat terms imposed for both convictions. State v. O'Donnell, 117 N.J. 210, 215 (1989). In fact, a seven-year term, the then presumptive sentence for a second-degree crime, was lenient considering defendant's abysmal criminal record.
Furthermore, although defendant argues to the contrary, the fact that the police did not arrest defendant after the first transaction cannot be considered in mitigation of defendant's sentence. Defendant was responsible for his actions after the first distribution and cannot possibly justify a more lenient sentence by blaming the police for not immobilizing him sooner.
With regard to the consecutive nature of the sentence, the judge's explanation, though terse, met the criteria of State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). As the sentencing judge noted, the crimes "are separate and distinct incidents, separate and distinct days. The second incident occurring April 29, the first May 27." See State v. Ghertler, 114 N.J. 383, 390-92 (1989) (approving consecutive sentences even though trial court provided only a "terse" statement of reasons). Accordingly, we find no reason to reverse the two consecutive seven-year prison terms.
However, defendant is entitled to be resentenced for the fourth-degree crime. Several months after the trial judge imposed sentence for that crime, the Supreme Court decided State v. Natale, supra, 184 N.J. at 458. Defendant's sentence is encompassed by the Natale rationale because he received a term in excess of the then presumptive term. Accordingly, we conclude, and the State concurs, that he must be resentenced, solely on that conviction.
Consequently, we affirm defendant's convictions. The sentence pertaining to the cocaine/marijuana second-degree crimes is also affirmed, however, we vacate and remand for re-sentencing in accordance with Natale, the portion of the sentence pertaining to the fourth-degree crime.
Affirmed in part, vacated and remanded in part.