July 20, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES S. THOMAS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Ind. No. 02-01-0161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 11, 2005 (telephonically)
Decided July 26, 2005
Remanded by Supreme Court June 28, 2006
Resubmitted September 8, 2006
Remanded September 21, 2006
Argued May 15, 2007
Before Judges Weissbard and Payne.
In an unpublished opinion filed July 26, 2005, we reversed defendant's second-degree robbery conviction but affirmed his conviction for second-degree eluding. As a result of our reversal, we did not address defendant's sentencing arguments, although we noted that the sentencing judge had erroneously applied the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to the maximum base term (ten years) of defendant's extended term sentence of eighteen years. See State v. Andino, 345 N.J. Super. 35 (App. Div. 2001). The State sought, and the Supreme Court granted, certification to review our reversal of the robbery conviction, and reversed our determination, thereby reinstating defendant's robbery conviction. State v. Thomas, 187 N.J. 119 (2006). The Court remanded the matter to us for consideration of defendant's sentencing arguments. Id. at 138.
In our initial opinion we set out defendant's sentence:
At sentencing, the judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:44-3a and imposed an eighteen-year term on count one, subject to the No Early Release Act (NERA) applied against the maximum base term of ten years. A consecutive ten-year prison term with five years of parole ineligibility was imposed on the eluding conviction, count two. The other sentences - five years on count three, six months on count five, eighteen months on count six and five years on count seven - were all concurrent to the robbery and eluding sentences. Thus, the aggregate sentence was twenty-eight years with thirteen-and-one-half years of parole ineligibility.
In a supplemental opinion of September 21, 2006, we noted that State v. Pierce, 188 N.J. 155 (2006), decided while defendant's appeal was pending, had established new procedures for extended term sentencing, in which the "protection of the public" finding previously required, see State v. Dunbar, 108 N.J. 80, 90 (1987), now became simply another factor for consideration in deciding an appropriate sentence within the entire range from the bottom of the ordinary term to the top of the extended term, with no presumptive term. Pierce, supra, 188 N.J. at 170. In remanding for a new sentencing, we stated:
Here, defendant argued, in part, that his prior record, which included four convictions, two for drug offenses, a third-degree aggravated assault, and a theft, none of which had resulted in a sentence of incarceration, did not justify an extended term, particularly in light of the real-time NERA consequences of any sentence, see State v. Marinez, 370 N.J. Super. 49, 57-59 (App. Div. 2004), certif. denied, 182 N.J. 142 (2004), and the consecutive sentence imposed for eluding. Defendant's argument has considerable merit but, as noted, we did not address the issue in our prior opinion. Indeed, defendant's argument has even more force by virtue of the State's correct argument that defendant's NERA term should have been even longer.
Nevertheless, we conclude that in light of the new procedure established by Pierce, the most appropriate course is to remand this matter to the Law Division for an entirely new sentencing, consistent with the intervening case law. Defendant's other arguments, including those alleging inappropriate applications or non-application of the aggravating/mitigating factors may be readdressed to the sentencing judge. If further review is warranted, defendant will have that opportunity subsequently. [footnote omitted]
Defendant was resentenced on October 13, 2006. The judge restructured defendant's sentence, imposing a sixteen-year term on the robbery charge, subject to NERA, and a concurrent ten-year prison term with five years parole ineligibility on the eluding. The sentences on the other counts of conviction remained the same, all concurrent to the robbery and eluding. Thus, defendant's aggregate sentence is sixteen years with an eighty-five percent period of NERA parole ineligibility, or thirteen point six years.
Defendant has now appealed from that new sentence, arguing:
THE COURT VIOLATED PIERCE AND PEARCE WHEN IT INCREASED THE DEFENDANT'S PAROLE DISQUALIFIER.
THE COURT ERRED IN SENTENCING THOMAS, WHO HAD NEVER PREVIOUSLY BEEN INCARCERATED, TO AN EXTENDED TERM, AND IN FAILING TO CONDUCT A DUNBAR ANALYSIS. EVEN IF AN EXTENDED TERM WAS APPROPRIATE, IT SHOULD HAVE BEEN IMPOSED ON THE ELUDING CONVICTION, NOT ROBBERY.
A. Thomas Should Not Have Been Sentenced To A Term In The Extended-Term Range.
B. If An Extended-Term Sentence Was Appropriate, The Court Should Not Have Imposed A Sentence In Excess Of The Mid-Point In The Sentencing Range.
C. If The Court Was To Impose An Extended Term, It Should Have Imposed Such A Term For Eluding, Not Robbery.
Defendant's first argument arises from the fact that defendant's original sentence, comprised of eighty-five percent of ten years (the maximum base term) or eight and one-half years plus a consecutive sentence carrying a five-year parole disqualifier, resulted in a parole disqualifier of thirteen and one-half years. Although the sentencing judge recognized that he could not increase defendant's sentence in a Pierce resentencing, Pierce, supra, 188 N.J. at 174, he in fact did, apparently inadvertently, increase the parole disqualifier by one month. Defendant argues that such an increase is unlawful, citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed. 2d 656 (1969), State v. Eigenmann, 280 N.J. Super. 331, 338 (App. Div. 1995), and State v. Tavares, 286 N.J. Super. 610 (App. Div.), certif. denied, 144 N.J. 376 (1996). On this aspect of his argument, defendant seeks a one-month reduction in his parole disqualifier. The State responds that because the original sentence was illegal the judge permissibly, albeit inadvertently, increased the parole disqualifier. The State relies on the proposition that an illegal sentence may be corrected at any time "even if such corrective action results in an increase in a defendant's term of imprisonment." State v. Parolin, 339 N.J. Super. 10, 13 (App. Div. 2001), rev'd on other grounds, 171 N.J. 223 (2002). We are inclined to agree with the State that the slight increase in defendant's parole ineligibility term resulting from correction of an illegal sentence did not violate the principles of Pearce. See State v. Horton, 331 N.J. Super. 92, 102 (App. Div. 2000); State v. Baker, 270 N.J. Super. 55, 72 (App. Div.), aff'd o.b., 138 N.J. 89 (1994).
That said, we have grave concerns about the length of defendant's NERA sentence under the circumstances and the reasons given for the sentence.
We need not review the facts at any length; they have been covered fully in our initial opinion and in the Supreme Court's opinion. Thomas, supra, 187 N.J. at 124-25. With respect to the robbery, defendant's culpability rested on his status as an accomplice in that he drove the getaway car while his companion engaged in a purse snatching from a seventy-seven-year-old lady exiting a dry cleaner. After fleeing the scene, defendant sought to escape by driving in an erratic and dangerous manner, speeding, passing stop signs, and striking a number of vehicles, including a pursuing police cruiser, before abandoning the car, which had been stolen earlier that day.
At resentencing, defendant's eligibility for extended term sentencing as a persistent offender, N.J.S.A. 2C:44-3(a), was again conceded. Defendant had been convicted on four prior occasions: a 1994 theft from the person for which he received two years probation; an aggravated assault in 1997 for which he received four years probation; and two 1998 charges of possession of CDS with intent to distribute within 1000 feet of school property, again resulting in probationary terms. The judge found aggravating factors three (risk of future offenses), six (prior criminal record), nine (need to deter), and twelve (age of victim), and no mitigating factors. He found that the aggravating factors, weighed against the non-existent mitigating factors, required a parole disqualifier "to protect the public." The judge then imposed the sixteen-year extended term so that, with the NERA period applied, the resulting parole ineligibility would be no greater than that imposed originally.
Because of his prior convictions, defendant's sentence exposure for both robbery and eluding went from five to ten, to five to twenty, but only robbery is a NERA offense. The judge chose to structure the sentence in such a manner that NERA governed, that is, the judge could have imposed an extended term on the eluding, which could have resulted in a maximum parole ineligibility period of ten years (one-half of the twenty year maximum), but he chose not to do so. We believe the sentence thus imposed was manifestly inappropriate and constituted a misapplication of discretion.
Every offense has a real-world range of severity, from its least serious version to its most egregious form. Not every assault is the same; not every robbery is equally serious and not every robbery is equally culpable. Here, when measuring this robbery against the range of an extended term, the judge failed to gauge its seriousness against other robberies and to assess defendant's role in the offense. Ironically, the judge did just that with respect to the eluding at the time of defendant's initial sentence, describing it as "the worst eluding I have seen for intensity, duration, and danger." The "eluding involved a very, very violent prolonged danger to the public." And defendant was the primary actor in the eluding.
By contrast, defendant was not the robber but the accomplice. Despite the prosecutor's continued erroneous assertion from original sentencing repeated at resentencing, that the victim had been thrown to the ground, the testimony was that the victim's arm was twisted in an effort to grab her purse, and, fortunately, she suffered no ill effects. Yet, on the extended term scale, the judge imposed a sentence seventy-three percent of the distance between minimum and maximum.*fn1 The record does not, in our view, support such an assessment of defendant's culpability for the robbery. By contrast, such a gradation would have been appropriate for the eluding.
Two other considerations are critically important. First is the notion that punishment should be progressive, where feasible. Thus, at least in theory, an individual should receive probationary terms for his initial brushes with the law and then longer and still longer jail sentences as he or she recidivates. Obviously that cannot always be the case given our presumptions of prison terms for first and second-degree offenses, which may result in a lengthy jail term for even a first offender. Yet here, defendant had received only probationary terms for his prior offenses. We can only assume that the judges and prosecutors in those cases considered the sentences appropriate. Certainly defendant did not deserve any more probation. A prison term was not only overdue but required. But, from probation, defendant has been catapulted not to a short prison term but to thirteen and one-half years without parole.
The second consideration is the impact of NERA itself. In our second opinion, we alluded to the NERA consequences of defendant's sentence, citing State v. Marinez, 370 N.J. Super. 49, 57-59 (App. Div.), certif. denied, 182 N.J. 142 (2004), finding merit in defendant's argument that his consecutive sentences for eluding and robbery were excessive, particularly given that, on resentencing, the NERA would have to be applied to the extended term, not simply the ordinary base term.
Despite our expressed misgivings, the judge did not address the real-time consequences of NERA. Indeed, this sentencing is not remarkable in that regard. Experience suggests that judges often do not address the subject. Aggravating and mitigating factors are weighed and sentences are frequently imposed without NERA concern, and then NERA automatically falls into place. Judge Pressler spoke to this situation in Marinez, noting the disparity between sentences imposed by judges who appear to consider the "real-time consequences of NERA" and those who do not. Id. at 57-58. Our review of this defendant's sentence suggests that the real-time consequences were either not considered or, if considered, resulted in a sentence that "was unduly harsh and severe." Id. at 59.
We recognize the constraints on our review of sentencing determinations, State v. Roth, 95 N.J. 334, 364-65 (1984), but our power of review, albeit limited, still remains. We conclude that this case calls for our intervention. While we might normally remand the matter to the trial court for reconsideration, such a course would be less than useful here, where the judge has already reconsidered the original sentence and restructured it. As a result, we believe the matter is appropriate for exercise of our original jurisdiction. R. 2:10-5.
As we have explained, defendant's involvement in the robbery and the robbery itself do not warrant as much condemnation as his conduct in the course of eluding the police. Thus, eluding warranted the extended term, not the robbery. An appropriate and just sentence under the circumstances is as follows: on the eluding, an extended term of sixteen years, with eight years of parole ineligibility; on the robbery, a term of eight years with a NERA parole ineligibility period of six point eight years to run concurrent with the eluding.
Reversed and remanded with directions to enter a new judgment of conviction consistent with this opinion.