November 28, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN SHEFFIELD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-01-0213.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2007
Before Judges Parrillo and Sabatino.
Defendant Shawn Sheffield appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). For reasons that follow, we vacate the NERA parole ineligibility term, remand for resentencing, and affirm in all other respects.
By way of background, following a jury trial, defendant was convicted of two counts of first-degree robbery, N.J.S.A. 2C:15-1 (Counts I and II); third-degree possession of a handgun, N.J.S.A. 2C:39-5(b) (Count III); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count IV). The court merged the armed robbery convictions and on Count I imposed a fifteen-year term with an 85% period of parole ineligibility pursuant to the pre-amendment No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also merged the weapons conviction on Count III into that on Count IV, imposing for that crime a concurrent seven-year term.
On appeal, we affirmed the judgment of conviction in a per curiam opinion, which recited the underlying facts as follows:
According to the State's proofs, on September 27, 2000, around 1:30 p.m., under the pretense of using a phone to call his girlfriend, defendant entered Jillane's Hair Salon on Central Avenue in East Orange, pointed a small silver handgun at Stephanie Smith, the manager of the store, and her daughter Lakisha Gordon, a hairstylist, told them not to scream and "you won't get hurt," and demanded that Smith and Gordon give him their money. There was none, so he ordered them to give him their jewelry. As Gordon began taking off her bracelets, defendant grabbed them and tore a necklace from Gordon's neck. He then demanded Smith's wedding ring. Taking the ring, defendant also snatched a necklace from Smith's neck.
Defendant then attempted to barricade Smith and Gordon into the bathroom of the hair salon by pushing a hydraulic styling chair in front of the door. He proceeded to search a closet next to the bathroom, remove a duffel bag therefrom, and exit the building. When Smith heard the front screen door close, she stood on the toilet in the bathroom and opened the window, from where she observed defendant turn left off of Central Avenue and disappear down the street. The two women were able to exit the bathroom and immediately called the police.
Two days later, Gordon was at the health clinic and recognized defendant sitting in the waiting room asleep. In fear, she called her mother, who immediately called the police. Smith then went to the clinic, meeting Gordon and the police there. Smith was certain that the man asleep in the chair at the clinic was the same man who robbed her and her daughter two days earlier. He was wearing the same exact clothing as the day of the robbery, with the exception of the coat over his sweater. He also had a scar on his nose similar to the robber. After defendant was arrested, Smith went to the police station and identified defendant by photograph as the man who had robbed her and Gordon.
After being advised of his Miranda rights, defendant gave a signed statement to the police admitting that he had robbed Smith and Gordon of jewelry [but denying he possessed a gun at that time]. He told East Orange Police Detective James Pitts that he had pawned the jewelry at a shop on Halsey Street in Newark for $230. Detective Pitts subsequently went to the Halsey Street Jewelers, and recovered some of the stolen jewelry. The owner of the jewelry store, Charles Roundtree, identified defendant as the individual who had sold him the chain, bracelets and rings belonging to the victims.
At trial, defendant recanted his statement to the police, denying that he robbed Smith and Gordon or had ever seen them prior to his arrest at the clinic. He also claimed the police never advised him of his Miranda rights, and denied giving them a statement. He explained his signature on both the waiver of rights form and confession by saying that he was experiencing heroin withdrawal at the time and therefore signed the papers so that he would be taken to the hospital as promised. The jury evidently rejected defendant's version and convicted him of the robbery and weapons charges.
[State v. Sheffield, No. A-3945-01 (App. Div. Apr. 3, 2003) (slip op. at 2-4), certif. denied, 177 N.J. 492 (2003).]
Following denial of his petition for certification, defendant timely filed a pro se PCR petition wherein he challenged the imposition of the NERA sentencing feature, and in an amended petition filed by counsel raised two other related issues, the latter phrased in terms of ineffectiveness of trial and appellate counsel for failing to object to the NERA jury instruction and failing to move for judgment of acquittal on the NERA charge, and raising the issue on appeal. Defendant's essential contention of an alleged illegal NERA sentence is based on his claim that the State failed to prove he used a "deadly weapon," i.e. an operable gun, which is a predicate to finding the commission of a violent crime necessary to trigger application of pre-2001 NERA, L. 1997, c. 117, § 2(a), (d). Indeed, the gun observed by the victim was not fired at the scene, nor was it ever recovered and tested. The PCR judge rejected this argument and denied defendant's application, reasoning:
Now, in this Court there was a rather detailed description elicited by the prosecutor from the victim in this case. She described it as a handgun. She described it as small. She described it as silver. She indicated it had a square front like I understand typically an automatic does, although I'm not an expert on weapons myself. She also indicated the clip in the weapon was inserted through the handle of the weapon.
Given all these factors, a jury could reasonably conclude that the weapon was operable. Consequentially, I find that there was not an illegal sentence here. I find that the instruction given by [the trial] [j]udge with respect to this issue, were perfectly consistent with the law that was in effect at that time. Consequentially, I find no ineffective assistance of counsel for failing to challenge that issue . . . .
On appeal, defendant raises the following issues:
I. THE STATE FAILED TO ESTABLISH THAT THE DEFENDANT USED A
"DEADLY WEAPON" AS REQUIRED UNDER NERA AND, THEREFORE, DEFENDANT'S NERA SENTENCE IS ILLEGAL.
II. THE TRIAL COURT'S NERA INSTRUCTION TO THE JURY WAS INADEQUATE AND, THEREFORE, DEFENDANT'S NERA SENTENCE IS ILLEGAL.
III. DEFENDANT WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, REQUIRING A REVERSAL OF HIS CONVICTION OR, ALTERNATIVELY, A HEARING TO DETERMINE WHETHER COUNSEL WAS INEFFECTIVE.
IV. THE ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF SUPPORT HIS REQUEST FOR POST CONVICTION RELIEF.
We find no merit in the last three contentions, R. 2:11-3(e)(2), but are persuaded that the first issue warrants vacation of the NERA feature of defendant's sentence for armed robbery, and a remand for resentencing on that count.
The original version of NERA, in effect at the time of the armed robbery on September 27, 2000, required the jury to find that the defendant had committed a "violent crime," which was defined as "any crime in which the actor causes death . . . [or] serious bodily injury . . ., or uses or threatens the immediate use of a deadly weapon." L. 1997, c. 117, § 2(d).*fn1 A deadly weapon, for NERA purposes, is defined as "any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury." L. 1997, c. 117, § 2(d). Because an inoperable firearm used to threaten a victim is not capable of producing death or serious bodily injury, it may not be regarded as a deadly weapon for NERA sentencing purposes, State v. Perez, 348 N.J. Super. 322, 325 (App. Div.), certif. denied, 174 N.J. 192 (2002); State v. Austin, 335 N.J. Super. 486, 489-90 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001), even though it may constitute a deadly weapon for purposes of elevating a robbery to first-degree status, N.J.S.A. 2C:11-1(c); N.J.S.A. 2C:15-1(b), and for purposes of imposing Graves Act mandatory parole ineligibility sentencing, N.J.S.A. 2C:39-1(f); N.J.S.A. 2C:43-6(c). Austin, supra, 335 N.J. Super. at 487-88.
In State v. Johnson, 166 N.J. 523 (2001), the Court upheld the pre-2001 NERA sentence by virtue of its review of the proofs at the jury trial. Id. at 545-46. There, the police found in the defendant's possession a black, pistol-shaped BB gun, identified by the robbery victim as the weapon used by the defendant during the robbery, and by the State's weapons expert as capable of causing serious bodily injury. Id. at 528. And in State v. Morgan, 121 N.J. Super. 217 (App. Div. 1972), we found that a revolver with a filed-down firing pin was operable in light of expert testimony establishing that the weapon was capable of being fired with but minor adjustment. Id. at 220.
In contrast here, the weapon was neither fired nor recovered, and there was no direct proof -- expert or otherwise -- of operability. The only evidence proffered was a lay person's description of the weapon as a "small, silver gun," "square" and loaded by a clip in the handle. From this scant description, the PCR judge inferred operability. We disagree. As we noted in Austin, supra, 335 N.J. Super. at 491-92,
[t]he legislative intention to impose the severe penalty of parole ineligibility until eighty-five percent of the base term has been served was clearly intended to be limited to those truly violent crimes encompassed by its careful and circumscribed definition. It is, therefore, entirely consistent with the legislative scheme for the Legislature to have included inoperable weapons within the Graves Act penalty but not within the NERA penalty.
In this regard, the Legislature made proof of a weapon's operability an essential element in the imposition of a NERA parole ineligibility term. While proof, no doubt, may be circumstantial, we perceive nothing in the witness' description of the gun's appearance that satisfies, even inferentially, the requirement of demonstrable present operability.
To be sure, there are cases involving certain weapons- related offenses where we did not insist upon a demonstration of operability but instead inferred the weapon's authenticity from its appearance or from the testimony of lay witnesses. See, e.g., State v. Magwood, 177 N.J. Super. 105, 107 (App. Div.), certif. denied, 87 N.J. 327 (1981) (defendant's prior- inconsistent statement to authorities that weapon was real was sufficient evidence to support armed-robbery conviction even though at sentencing he claimed weapon was a toy); State v. Cole, 154 N.J. Super. 138, 146 (App. Div. 1977), certif. denied, 78 N.J. 415 (1978) (testimony that witness heard a "click click" that sounded "like you pull a trigger back off a revolver" was sufficient to support conclusion that device was real gun in a prosecution for assault, armed robbery, and weapons-possession offenses); State v. Schultheis, 113 N.J. Super. 11, 14, 16 (App. Div.), certif. denied, 58 N.J. 390 (1971) (testimony of teenage boy that he saw handle and barrel sufficient to conclude instrument was gun in a prosecution for unlawful weapons possession, threatening the life of another, bookmaking, and breaking and entering with intent to assault). However, none of these cases was decided under pre-amendment NERA where proof of a gun's operability was inherent in the definition of "firearm." Instead, these cases dealt with the question of operability either as an element of the substantive offense, see, e.g., State v. Harmon, 203 N.J. Super. 216, 226-28 (App. Div. 1985) (in a prosecution under N.J.S.A. 2C:39-4(a), prohibiting possession of a firearm for an unlawful purpose, prosecution need not prove that weapon was operable at the time of the offense), rev'd o.g., 104 N.J. 189 (1986), or as a predicate for the imposition of the mandatory prison term required by the Graves Act. See, e.g., State v. Gantt, 101 N.J. 573, 591 (1986) (holding that the State need not prove that a handgun used in an armed robbery was operable before a court may impose a sentence under the Graves Act).
As we noted in Austin, supra, 335 N.J. Super. at 491, "NERA . . . is quite different." "NERA imposes a more stringent penalty for first- and second-degree crimes than the Criminal Code had theretofore prescribed[,]" id. at 493, and is therefore deserving of our strict construction. Id. at 489. There is also a critical difference, in our view, between design and operability. See, e.g., State v. Millett, 392 A.2d 521, 527-28 (Me. 1978) (jury warranted to find, on the basis of lay testimony describing instrument projecting from defendant's belt, that weapon was a real gun and it was not necessary for state to prove operability). That is why it does not necessarily follow that because the Graves Act is concerned only with "real" guns, the statute requires proof of a weapon's operability. And the distinction has obvious reference to the varying types of proof necessary to establish either. Unlike operability, "an object's authentic design may be inferred from [its] appearance or based on lay testimony, [and is not] . . . dependent upon empirical examination of the weapon." Gantt, supra, 101 N.J. at 589-90.
Thus, while the victim's description of the gun's appearance in this case may have sufficed to establish the weapon's "realness," "authenticity" or potential danger for Graves Act purposes, it falls short of demonstrating that the gun was fully operational at the time of the crime, a necessary predicate to NERA sentencing. We fail to see how the gun's appearance supports any inference of its operability. On the contrary, an inference that the gun in this case was operational would be wholly speculative and cannot satisfy the requirement of proof of a "violent crime" beyond a reasonable doubt.
Affirmed in part; reversed in part and remanded for resentencing on the armed robbery count.