On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 88-03-0334.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Payne.
Thirteen years after imposition, upon remand, of his extended term sentence of life in prison with a twenty-five-year period of parole ineligibility for first-degree armed robbery, N.J.S.A. 2C:15-1, and a consecutive sentence of ten years with a five-year period of parole ineligibility for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), defendant Andrew Rhett unsuccessfully challenged his sentence in the trial court by means of a "motion for reconsideration of sentence" argued on July 23, 2004 and decided on August 4, 2004. In the interim, defendant had filed a petition for post-conviction relief (PCR), which was denied by order dated June 19, 1992. We affirmed that order on appeal. State v. Rhett, No. A-2726-92T4 (App. Div. August 23, 1994). However, defendant did not raise any sentencing issues in that proceeding. Despite the late filing of the instant motion for reconsideration, the motion judge considered the merits of defendant's argument that the two convictions should have merged for sentencing purposes, and determining that the sentences were imposed for separate crimes, denied defendant's motion.
On appeal, both counsel and defendant, in his pro se supplemental brief, reiterate defendant's challenge to the legality of the sentence. We, like the motion judge, have substantively reviewed defendant's argument, viewing it as one alleging an illegal sentence correctable at any time pursuant to R. 3:22-12. Determining defendant's argument to lack merit, we affirm the order of the motion judge. Although there are instances in which armed robbery and assault charges properly merge for sentencing purposes, see, e.g., State v. Battle, 209 N.J. Super. 255, 260 (App. Div.), certif. denied, 105 N.J. 560-61 (1986), we discern no misuse of discretion by the sentencing judge in finding otherwise in this case. See, e.g., State v. Carlos, 187 N.J. Super. 406, 418 (App. Div. 1982) (finding no merger of assault and robbery convictions), certif. denied, 93 N.J. 297 (1983).
Defendant's convictions arose out of conduct occurring on February 15, 1988. We draw the facts from our unreported opinion on defendant's first appeal, affirming defendant's conviction, but remanding the matter for resentencing. State v. Rhett, No. A-6047-88T4 (App. Div. May 9, 1991). On that date, defendant approached Wayne Durham and his girlfriend, Penny Ruddish, as they were sitting in a car at a Jack Rabbit store in Bridgeton, New Jersey, and sought a ride to Burlington Road. Reddish, the driver, agreed, and defendant entered the car. After driving approximately five to ten minutes, defendant asked Ruddish to pull over so that he could get out. Ruddish complied, and Durham, seated in the passenger seat, pulled his seat-back forward to aid defendant's exit. As Durham engaged the seat lever, defendant pushed the seat, pinning Durham to the windshield, and struck Durham on the left temple with a sharp object that looked like a knife. Slip op. at 3-4.
While this was occurring, Ruddish noticed that her purse, resting on the console between the two front seats, was moving. When Ruddish tried to stop defendant from taking the purse, defendant threatened that he would "cut her up badly or kill her." Ruddish thereupon hit defendant, who then cut her across the face with a knife or a piece of glass. Although, after a struggle, Ruddish maintained control of her purse, she sustained significant injuries to her face, consisting of two major cuts, one over the left eye, and one extending from her mouth to her jaw, requiring in excess of fifty stitches to close. Permanent scarring and partial facial paralysis resulted. Id. at 4.
On our initial remand of the matter for resentencing as the result of the improper imposition of two extended terms, see N.J.S.A. 2C:44-5a(2), we stated that upon remand, the trial judge should give consideration to merger arguments that had been raised by defendant in his appeal. Slip op. at 13. The trial judge did so, and he again determined that consecutive sentences were warranted, stating:
The sentences are consecutive because the aggravated assault was an intentional criminal act beyond that required to support the robbery conviction. It was an act of violence not even necessary to rob the victims or escape afterwards. The victim was a Good Samaritan wantonly and savagely slashed and permanently disfigured by the defendant.
N.J.S.A. 2C:15-1b elevates armed robbery to a crime of the first degree if, in the course of committing a theft, the perpetrator "attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." In this case, defendant's threats to cut or kill Ruddish were sufficient to establish a foundation for the first-degree crime. The slashings that occurred thereafter were gratuitous -- a vengeful response to Ruddish's resistance. In a circumstance such as this, in which the injury was disproportionate to the threat or force necessary to accomplish the crime, we perceive no grounds for disturbing the sentencing judge's determination to impose consecutive sentences. State v. Jones, 213 N.J. Super. 562, 570 (App. Div. 1986), certif. denied, 107 N.J. 90 (1987); see also State v. Yarbough, 100 N.J. 627, 643-45 (1985).
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