August 8, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICK A. RIVELLA, RESPONDENT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-01505-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2007
Before Judges Gilroy and Lihotz.
Following a jury trial, defendant was convicted under Union County Indictment No. 04-12-1505 of third-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1b(5)(a) (Count One); third-degree resisting arrest by using or threatening to use physical force or violence against a police officer, N.J.S.A. 2C:29-2a(3)(a) (Count Two); fourth-degree resisting arrest by flight, purposefully preventing or attempting to prevent a police officer from effecting arrest, N.J.S.A. 2C:29-2a(2) (Count Three); and fourth-degree criminal trespass, N.J.S.A. 2C:18-3 (Count Four). Prior to sentencing, defendant moved for a judgment of acquittal, or in the alternative, for a new trial, and the motion was denied. On December 16, 2005, defendant was sentenced on Count Two as a persistent offender to an extended term of seven years of imprisonment with a one-year parole disqualifier. Concurrent terms of eighteen months each were imposed on the convictions on Counts Three and Four. Count One was merged with Count Two. All appropriate fees and penalties were imposed. Defendant appeals. We affirm the convictions; vacate the sentence imposed on Count Two; and remand for re-sentencing on Count Two only.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING COUNTS I, II AND III OF THE INDICTMENT.
A. THE STATE FAILED TO PRESENT A PRIMA FACIE CASE ESTABLISHING THE REQUISITE ELEMENTS OF THIRD[-]DEGREE AGGRAVATED ASSAULT EMBODIED IN COUNT I OF THE INDICTMENT.
B. THE STATE FAILED TO PRESENT A PRIMA FACIE CASE REGARDING THE REQUISITE ELEMENTS OF RESISTING ARREST EMBODIED IN COUNTS II AND III OF THE INDICMENT.
THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING COUNT I CHARGING AGGRAVATED ASSAULT.
THE TRIAL COURT ERRED IN ITS ASSESSMENT OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS IN IMPOSING SENTENCE.
THE DEFENDANT IS ENTITLED TO A REMAND FOR A RE[-]SENTENCING PURSUANT TO STATE V. PIERCE.*fn1
We have reviewed defendant's arguments under Points I and II and find the arguments are without merit. R. 2:11-3(e)(2).
In Point IV, defendant argues that he is entitled to a remand for reconsideration of the sentence imposed on Count Two. Although defendant does not contest that he is statutorily eligible to be sentenced as a persistent offender because of his prior convictions, N.J.S.A. 2C:44-3a, he contends that the trial judge improperly engaged in factfinding when he imposed the enhanced sentence, determining that the extended sentence was "necessary for the protection of the public." We agree.
Because the discretionary extended-term sentence was imposed with the trial judge deciding all four prongs of the Dunbar*fn2 standard, we vacate the sentence imposed on Count Two and remand the matter to the trial court for re-sentencing on that count only, in light of the recent decision of the Supreme Court in State v. Pierce, supra, 188 N.J. at 166-69. In re-sentencing, the judge "may consider the full range of sentences available from the bottom of the ordinary-term range to the top of the extended-term range," except "defendant may not be subjected to a sentence in excess of the one previously imposed." Id. at 174.
Lastly, defendant argues that when imposing the extended-term sentence, the judge improperly found applicable the aggravating sentencing factors of N.J.S.A. 2C:44-1a(3) (risk that the defendant will commit another offense) and N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record). Defendant contends that "the risk [he] would commit another offense necessarily resulted from his prior criminal record, while it was the very extent of his prior criminal record which made him eligible for extended-term sentencing in the first place." Defendant asserts that "since these aggravating factors formed the basis for which the trial court could impose a discretionary extended term, . . . neither aggravating factor N.J.S.A. 2C:44-1a(3) nor (6) should [have been] given any additional weight as aggravating factors in deciding the actual punishment to be imposed," contending that it constituted a form of "double counting." We disagree.
We are satisfied that the trial judge properly determined the aggravating factors in imposing the extended-term sentence. A court must consider the applicable aggravating and mitigating factors and impose a sentence within the broadened range of sentences available for an extended-term sentence. Pierce, supra, 188 N.J. at 171. In fulfilling its sentencing obligation, a court is required to consider all statutory aggravating and mitigating sentencing factors, and determine which ones are applicable, that is, supported by credible evidence in the record. State v. Dalziel, 182 N.J. 494, 504-05 (2005). A court may consider aggravating factors (3) and (6) when sentencing a defendant to a discretionary extended term. See State v. Thomas, 188 N.J. 137, 152-54 (2006) (holding that a judge may find aggravating sentencing factors (3), (6), (9) applicable in sentencing a defendant to a mandatory extended term).
Defendant also contends that the trial judge erred by failing to find applicable the mitigating sentencing factors of N.J.S.A. 2C:44-1b(1) (defendant's conduct neither caused nor threatened serious harm), N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct would cause or threaten serious harm), and N.J.S.A. 2C:44-1b(11) (the imprisonment of the defendant would entail excessive hardship to himself or his dependents), contending that he is the father of a minor son born out of a previous relationship and incarceration would involve hardship to his son and his son's mother, asserting that they were dependent, to a certain extent, upon parental, emotional, and financial support. Because the three mitigating factors are not supported by credible evidence in the record, the failure to find those factors was not an abuse of discretion.
The judge considered, but did not find, mitigating factors (1) and (2). Sentencing was conducted immediately following the judge's ruling on defendant's motion for judgment of acquittal, or in the alternative, for a new trial. In denying the motion, the judge referenced defendant's actions that placed him and the police officer in harm's way. The police officer pursued defendant across six lanes of travel on Route 78, dodging motor vehicles as he crossed; followed defendant up a steep embankment, requiring the police officer to climb "on all fours;" and grabbed defendant as he attempted to cross a four to five-foot high fence with defendant jerking his leg and striking the officer in the chin with the bottom of his shoe. Defendant continued his dangerous course of action by attempting to elude the police officer by entering and running through a school before being apprehended. With these facts in the record, we discern no error by the judge not finding mitigating factors (1) and (2). Nor do we find any error on the judge's party by not finding mitigating factor (11) because defendant did not offer any evidence to show that the length of his sentence would be an extensive hardship on himself or others. Id. at 505. The convictions are affirmed; all sentences, except on Count Two, are affirmed; and the sentence on Count Two is remanded to the trial court for a new analysis pursuant to State v. Pierce, supra, 188 N.J. at 168-74.
Affirmed in part; reversed in part; and remanded to the trial court for further proceedings consistent with this opinion.