February 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEROY SHELLEY,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 97-04-0715 and 97-03-0549.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2008
Before Judges Yannotti and LeWinn.
After the trial court denied his motion to suppress certain statements that he gave to the police, and found that he was competent to stand trial, defendant pled guilty to count one of Atlantic County Indictment No. 97-03-0549, charging first-degree robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; and count two of Atlantic County Indictment No. 97-04-715, which charged defendant with first-degree robbery, in violation of N.J.S.A. 2C:15-1. Defendant's plea was conditioned on his right to challenge the trial court's suppression and competency determinations. On March 1, 2002, defendant was sentenced to concurrent terms of twenty years of incarceration, each with a nine-and-one-half-year period of parole ineligibility. By order dated March 21, 2006, we granted defendant's motion to file a notice of appeal nunc pro tunc.
Defendant raises the following arguments for our consideration:
THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROOF THAT THE DEFENDANT'S WAIVER OF RIGHTS WAS KNOWING AND VOLUNTARY, AND THE MOTION COURT[']S FINDINGS WERE INSUFFICIENT TO SUPPORT ITS DECISION. (U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947), Art. I, Par. 10).
THE MOTION COURT ERRED IN FINDING THE DEFENDANT COMPETENT TO STAND TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), Art. I, Par. 10.
THE COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION, AND A REMAND PURSUANT TO STATE v. NATALE IS NECESSARY.
For the reasons that follow, we are convinced that there is no merit in Points I and II. However, we agree in part with the contentions in Point III and therefore remand for re-sentencing.
Defendant first argues that the trial judge erred by denying his motion to suppress the statements he made when he was questioned by the police. There is no dispute that defendant was informed of his rights under Miranda*fn2 and elected to waive his right to counsel and his right to remain silent. Defendant argues, however, that his statements were not freely and voluntarily given because he was physically assaulted by the police, threatened with further abuse if he did not make incriminating statements, and the police withheld the medication required for his mental illness.
"The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." State v. Knight, 183 N.J. 449, 462 (2005) (citing State v. Galloway, 133 N.J. 631, 654 (1993)). When determining whether a defendant made a statement voluntarily,
[a] court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved. [Id. at 462-63 (quoting Galloway, supra, 133 N.J. at 654).]
Here, the trial judge found that defendant freely and voluntarily made the statements when he was questioned by the police. We are convinced from our review of the record that there is substantial credible evidence to support the judge's finding.
Defendant's convictions arose from an armed robbery at a Payless Shoe store in Egg Harbor Township, New Jersey on February 12, 1997. Detective Sergeant Raymond Davis of the Egg Harbor Township Police Department (EHTPD), responded to the scene, and a clerk informed him that a black male had entered the store, brandished a firearm, stole money from the cash register, and fled the store on foot. The robbery was recorded by a surveillance camera.
Davis said that a witness saw a black male run from the store and enter the passenger side of a vehicle, which exited the parking lot at a high rate of speed. The witness recorded the vehicle's license plate number. Davis communicated that information to other law enforcement agencies, and he was informed that the vehicle was registered to defendant. That evening, Davis learned that defendant and Andre Jobe had been arrested by officers of the Philadelphia Police Department (PPD).
On February 13, 1997, Davis and Detective John Furlong of the EHTPD went to interview defendant and Jobe, who were being held at a police precinct in Philadelphia. Davis brought with him photos developed from the surveillance tape made during the shoe store robbery. Defendant was taken from a holding cell and walked upstairs to an interview room where he was questioned by Davis and Furlong. Detective Nathan and Lieutenant Dominick of the PPD sat in on the interview.
Davis testified that at approximately 5:30 p.m., Furlong read defendant the Miranda warnings from a standardized card issued through the EHTPD. Defendant told the officers that he understood his rights and did not want to see an attorney. Davis maintained that he did not coerce or threaten defendant, and that defendant gave his statement "freely and voluntarily."
Initially, defendant denied that he was involved in the robbery. He said that the previous evening, he had been with a "girl" and he had loaned his car to Jobe. However, about forty minutes after the questioning began, Davis showed defendant the surveillance photos. Defendant said that the individual in the photos was Andre Jobe. Davis told defendant that he was going to show the photos to Jobe and he asked defendant what he thought Jobe might say if he saw himself in the photos. Defendant again told Davis that he was not involved in the robbery.
The initial interview with defendant ended around 6:10 p.m. Defendant was brought downstairs and again placed in the holding cell. As he was being brought to the holding area, defendant called out to Jobe and said that the police had photos. Davis and a Philadelphia police officer then brought Jobe upstairs to be questioned. Jobe gave the officers a statement.
At 9:30 p.m., Davis, Furlong and Nathan brought defendant back upstairs to the interview room. Defendant was again informed of his Miranda rights. Davis testified that defendant appeared to understand his rights, spoke coherently, and did not ask to see an attorney. Defendant initialed the paragraph on a form, indicating that his rights had been read to him and that he understood what was read. The officers told defendant that they had just finished questioning Jobe, and Jobe told them that defendant was involved in numerous robberies.
Davis testified that defendant did not appear to be intoxicated by alcohol or drugs and his speech was coherent. Davis asserted that defendant understood his rights and agreed to answer the officers' questions without an attorney being present. Davis again stated that he did not promise defendant anything in return for his statement and did not coerce or threaten defendant in any manner. Davis again asserted that, to the best of his knowledge, defendant gave his statements freely and voluntarily.
Defendant told the officers that he had been involved in a robbery at the Payless shoe store, and had been involved in fourteen other robberies as well. At some point, Davis said that he decided to make a tape recording of defendant's statement. Davis read the Miranda warnings to defendant for a third time. Defendant made a tape recorded statement regarding the February 12, 1997 robbery at the Payless shoe store, as well as other robberies. Defendant was asked whether any threats or coercion had been used against him, and he said they had not.
On cross examination, Davis asserted that, when he was interviewing defendant, there was no indication that defendant had a psychiatric problem. Davis did not see any sign of incoherence, rambling, a failure to understand, or any physical signs such as twitching or convulsions. Davis stated that the initial interrogation was not recorded because the officers did not know what defendant was going to say "at that point."
Davis said that he did not see any bruising about defendant's head, nor did he see any lumps on his head that "might [have been] caused by someone being hit[.]" Davis stated that he was not aware that defendant had been taken to a hospital the previous evening. Davis did not recall defendant mentioning medication but the transcript of defendant's statement reflected that defendant had commented about "taking medication."*fn3 Davis stated, however, that defendant's comment did not suggest to him that defendant could have a psychiatric problem or that he was supposed to be taking medication.
At the hearing on May 9, 2001, defendant testified that he was arrested in Philadelphia on February 12, 1997, at around 9:00 or 10:00 p.m., and he was taken to the police station at 55th and Pine. Defendant was questioned by Davis, Furlong, Nathan and Dominick. Defendant said that he was brought from the holding cell and taken to another room. He stated that one of his hands was handcuffed to a bench. He was questioned about the shoe store robbery.
Defendant said that the first time he was questioned, he was not physically assaulted. According to defendant, the officers kept asking him where he was the night before. He told the officers that he was with his girlfriend at his sister's house. Defendant asserted that the second time he was brought upstairs for questioning, he told the officers he did not want to talk to them any more and asked for a lawyer. Defendant testified that, "[the officers] said, . . . do you want to do this the hard way or the easy way[.]"
Defendant asserted that Furlong had him "by the back of [his] neck while [he was] asking [defendant] questions." Defendant said that, if he did not speak fast enough, Furlong would squeeze his neck. Defendant maintained that, when he said that he did not want to speak to the officers, Furlong punched him in the back of his head. Defendant claimed that Davis rolled up a phone book and hit him with it on the side of his head. Defendant also said that the officers punched him in his ribs "a lot."
Defendant testified that he was told that if he cooperated, and signed certain papers, the officers would let him go to a psychiatric hospital and he would not have to go to jail. Defendant also asserted that one of the officers said that if he did not cooperate, he was going "to rip" defendant's grandmother's house apart "with a search warrant." Defendant claimed that the officer made these statements while he was hitting him.
Defendant further testified that he signed the waiver of rights form before he gave the tape recorded statement. Defendant said that the officers told him to hurry up and sign the form. Defendant maintained that the officers did not explain his constitutional rights to him. According to defendant, one of the officers said that "the sooner [he] signed [the form] the sooner [he] would get out of the police station."
Defendant asserted that he signed the form after he was hit. He said that he thought that he was "signing [his] own bail." Defendant stated that during the recorded interview, he was told to read a statement indicating what happened at "all these different places." He said that he was instructed to "recite back into the tape recorder that [he had] robbed these places."
In addition, defendant stated that prior to the interrogation, he had been diagnosed as having "bipolar schizophrenia." He said that in February 1997, he was taking medication for this condition twice each day, at 9:00 a.m. and 9:00 p.m.*fn4 Defendant maintained that he did not take his medication on the night of February 12, 1997 or during the day on February 13, 1997. He said that he asked the police for the medication and was told that he would only have the medication if he cooperated.
Defendant was asked how he "feels" when he does not take his medication. He replied that he feels like there is "kryptonite around" and sometimes he sees "gremlins" or his grandmother. He added that he sees his mother and father take him to a hospital where they put him in a straightjacket. He said that if he does not take his medication in the morning, he feels the effect around 5:00 p.m. Defendant said that if he does not take his medication, he does not think clearly "all the time." He also said that he may have hallucinations if he is under stress.
On cross examination, defendant asserted that in the first interview, he denied that he was involved in the shoe store robbery. He conceded that he was shown photos of the robbery, and when he was brought back to the holding cell, he yelled out to Jobe that the police had pictures. He told Jobe that he "was pointing a gun at an old lady." Defendant agreed that when the officers asked him specific questions in the first interview, he had been answering appropriately.
In addition, defendant was asked whether he was thinking clearly during the interrogation, even though he had not taken his medication. Defendant replied, "No. By that time I had missed my medication the night before. I was stressed out." However, defendant conceded that he was not suffering any delusions. He said that he was "just feeling really stressed out and anxious." Defendant agreed that during the interrogation, he understood the officers' questions. Defendant stated that when the police questioned him the second time, he was told that the officers had spoken with Jobe.
During defendant's testimony, Furlong entered the courtroom. Defendant said, "[t]ell them to please go away." The judge stated on the record that defendant had taken himself off the witness chair and had gone under the witness stand. The judge declared a recess and, after being informed that defendant's blood pressure was high, the judge adjourned the proceeding.
Defendant's cross-examination continued on October 31, 2001. He conceded that he signed the waiver of rights form during his interrogation but again claimed that he thought he was "signing [his] own bail[.]" Defendant asserted that he did not look at the document at all. He stated that he had been slapped in the face and hit with a telephone book. Defendant maintained that he gave two taped statements to the police. Defendant stated that, on the first tape, he and Jobe could not "get the locations right to [any] of the robberies[.]"
In addition, defendant conceded that he understood his Miranda rights and that he said so in the taped statement. He asserted that he said this because if he did not, it would "just prolong what was going on." Defendant admitted that he was convicted of a robbery in 1995 for which he was sentenced to five years of probation. He further admitted that he had been convicted in Pennsylvania in 1998 of what he called a "non-gun" robbery and had been sentenced to nineteen to fifty years of incarceration. Defendant also conceded that he was convicted of three robberies in Gloucester County, New Jersey and was sentenced to a nineteen-year term.
Defendant additionally asserted that he would have admitted to any robbery during the questioning by the police because he wanted the abuse to end. However, defendant conceded that he did not admit to every robbery he was asked about. Defendant stated that "[t]here's a lot [of] things I said in that statement that is [sic] totally stupid." Defendant also stated that, during the recorded statement, he said that no force or pressure had been put upon him to make the statement. He agreed that he made that statement but said that he lied.
Defendant additionally stated on re-direct examination that he had first been in a "mental hospital" when he was fourteen years old. At age twenty-one, he was diagnosed with "bipolar schizophrenia." He was hospitalized about six months before giving his statement to the police.
At the conclusion of the hearing on October 31, 2001, the judge placed his decision on the record. The judge made the following findings:
The defendant, I believe, may have and probably does have some psychiatric illness for which he has been treated over time, but he was quite lucid today and in his prior testimony before he became ill in May , but the gist of his testimony and particularly today was that he was beaten, assaulted, and threatened to be assaulted further if he did not confess to the Payless Shoe robbery which is the subject matter in this indictment and as well confess to a myriad of other robberies which he claims that he committed none of. His claim is not based on any inability to understand his rights. In fact, I think he quite candidly in his testimony today said he heard the rights given to him and he understood what they meant, but that his responses were forced out of him. I would find as a fact based on his own testimony as well as the testimony of Officer Davis who testified in this court on or about May 8th and 9th, that the defendant was interrogated on February 12, 1997, in Philadelphia, and he was given his rights; he understood his rights, and he waived the rights insofar as making a statement.
Now, [defendant] made the statement voluntarily but the point is that he says he made it [in]voluntarily because he had no other choice other than to sustain more beatings, so the issue in this case is not whether he had the capacity to under[stand] his rights. I believe he . . . unquestionably [had] that ability, he admitted as much, and he said that the only reason he said the things that he said was because he was beaten and threatened to be beaten more if he didn't make these statements. He went so far as to testify that the police told him about the robbery and the details of it so that he could confess using that information that the police gave him to make a detailed statement. This is not a question of whether the defendant, although he may well have had some psychiatric disability[,] was incapable of understanding his rights and incapable of voluntarily [waiving] that, that is not what this motion is about. This motion is about whether he was forced and coerced and beaten into making the statement and the confessions that he did.
With all due respect to [defendant], I reject his contentions that he was forced, beaten or threatened to be beaten to make these statements. I believe and find as a fact that he was given his rights, that he understood his rights, and having been confronted with some indication or evidence that his co-defendant confessed himself and implicated [defendant] was only at that point that [defendant] I believe saw the futility in further denials and that in his own best interest I would believe he came forward and made the statements he made and confessed to other robberies giving much detail which I don't believe that the police fed him. I believe that he had the detail because he committed them, but the point of it is, . . . the statement that he gave ultimately was not beaten out of him. In my view that's the fact that I find, that he was given his rights and he understood them and he waived them because he didn't see any other way out at that particular time. I don't think there was any coercion, [or] threat of coercion. I don't think [the statement] was made on the basis of, [w]e'll take you to the hospital and get you your medication if you tell us what you want to tell us and I don't believe any of that and I find that's not what happened.
So based upon the testimony of Officer Davis and to a large extent statements by [defendant] himself, I find as a fact that -- and as a matter of law that the statements were made knowingly and voluntarily and understandably[.] [T]he statements will be admissible at the time of the trial.
Defendant argues that the judge's finding are clearly erroneous. He maintains that his statements at the suppression hearing were "highly credible" and should have been accepted by the trial judge. He contends that the judge erred by rejecting "out of hand" his assertion that, at the time of his confession, he was suffering from a serious psychiatric illness and his medication had been withheld. Alternatively, defendant argues that the judge's findings are insufficiently supported and, at the very least, the matter should be remanded for "an explication" of the factual findings.
We are convinced, however, that the judge's findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). Deference to the judge's factual findings is particularly appropriate where, as in this case, the findings "are substantially influenced by" the judge's "opportunity to hear and see the witnesses and to have the 'feel' of the case." Id. at 161. Therefore, we affirm the denial of defendant's suppression motion.
We turn to defendant's contention that the judge erred by finding that he was competent to stand trial.
The defendant in a criminal action is considered competent to stand trial if it is established:
(1) That the defendant has the mental capacity to appreciate his presence in relation to time, place and things; and
(2) That his elementary mental processes are such that he comprehends:
(a) That he is in a court of justice charged with a criminal offense;
(b) That there is a judge on the bench;
(c) That there is a prosecutor present who will try to convict him of a criminal charge;
(d) That he has a lawyer who will undertake to defend him against that charge;
(e) That he will be expected to tell to the best of his mental ability the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;
(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and
(g) That he has the ability to participate in an adequate presentation of his defense. [N.J.S.A. 2C:4-4b.]
The statute provides precise standards for a determination as to whether a defendant is competent to stand trial. State v. M.J.K., 369 N.J. Super. 532, 548 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). "Our review of [competency] determinations is typically, and properly, highly deferential." State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000)).
At the competency hearing, which took place on September 10 and 21, 2001, the State presented testimony from Dr. Peter D. Paul, a clinical psychologist. Defendant presented testimony from Dr. Gary M. Glass, a psychiatrist. The judge placed his decision concerning defendant's competency on the record on October 4, 2001. The judge stated:
I am satisfied from the credible testimony of [Dr. Paul], . . . the [S]tate's psychologist, that the defendant meets the criteria of competency. He is oriented well as to person, place and time[.] [He is] mindful of his present situation, where he is and what it is that he's charged with, he's mindful of the function of the court, the prosecutor, the defense attorney, [and] he is mindful of his right to testify or not testify, the function of a jury, [as well as] the function of the defense attorney.
Clearly, [defendant] is not without psychiatric issues in his life. Although there have been a variety of diagnoses rendered at various times, they center around either forms of schizophrenia or schizoaffective disorder or a bipolar disorder with some manic features. While, clearly these constitute what could be referred to as a major mental illness, they do not per se render [defendant] incompetent and I conclude, from the credible testimony of Dr. Paul, that they do not, in fact, render him incompetent.
And, as found by Dr. Paul, there are and have been aspects of malingering and a specific test with respect to that, often utilized by psychologists, was administered and had a high indication of aspects of malingering. Dr. Glass sought to explain that away, but not in what was, to the Court, a persuasive manner.
Defendant maintains that the judge's findings are clearly erroneous. He contends that the he provided "cogent and forceful" testimony concerning his mental illness and its impact upon his ability to assist in the preparation of his defense. He argues that the testimony of his expert was "so highly persuasive" that the court's competency finding must be viewed as a mistaken exercise of discretion. We disagree.
At the competency hearing, Dr. Paul testified that he interviewed defendant twice and reviewed some records of defendant's prior psychiatric history. Dr. Paul testified that defendant was well oriented as to person, place and time. Defendant had the ability to comprehend that he was involved in judicial proceedings and was charged with a criminal offense. Defendant understood the role of a prosecutor, his defense lawyer, and the jury. Dr. Paul asserted that defendant understood the facts concerning the offense, his right to testify or not to testify in his defense, and his right to enter into plea negotiations and plead guilty to the charges. The doctor additionally stated that he found that defendant was capable of assisting his attorney in preparing a defense.
Dr. Paul also testified that defendant was "malingering." He said that the symptoms that defendant had reported, specifically his claim that he was "seeing little men walking around[,]" was not a symptom commonly seen in persons who are mentally ill. The doctor administered a test that he described as a "structured interview of reported symptoms." Dr. Paul asserted that, after giving that test to defendant, he came to the conclusion that defendant "was exaggerating his psychiatric symptoms."
Dr. Paul additionally stated that he had reviewed the report submitted by Dr. Glass. Dr. Paul asserted that he disagreed with the conclusions in that report. He noted that defendant told Dr. Glass that he was 1,230 years old. Dr. Paul said that, in his experience, he has "found that even the most disturbed patients generally are familiar with their own birth date."
The doctor also said that he had reviewed defendant's demeanor on a video tape of the suppression hearing when defendant came off the witness chair and went below the witness stand. The doctor opined that the incident did not appear to him to be a psychotic episode; rather, it appeared to be a panic attack or feeling of extreme anxiety. Dr. Paul opined that defendant was competent to stand trial.
Dr. Glass testified that he interviewed defendant. Defendant told Dr. Glass that he had a history of auditory hallucinations. Defendant said that he has difficulty concentrating and his memory "appeared to come and go[.]" Dr. Glass stated that defendant seemed to understand the role of his attorney but he did not appear to be clear in his ability to understand plea bargaining. When asked his age, defendant told the doctor that he was 1,230 years old. Dr. Glass asked defendant about his date of birth and, according to the doctor, defendant "starting speaking about Kryptonite."
The doctor said that defendant has a history of either bipolar disorder (manic) or schizophrenia. His diagnosis was "schizoaffective disorder." The doctor opined that defendant was not malingering. He noted that defendant suffered a traumatic head injury when he was in third grade. Defendant also has had a major psychiatric illness since the age of nineteen. Psychiatric medications have been prescribed, including Depakote and Thorazine.
Dr. Glass additionally noted that he had reviewed the video tape of defendant's conduct at the suppression hearing and stated that he did not believe it indicated any malingering on defendant's part because, during that incident, defendant's blood pressure dropped and he was perspiring profusely. The doctor stated, "[i]t is most difficult for someone to malinger a blood pressure drop and perspiration." The doctor opined that defendant was not competent to stand trial and assist in his defense.
On cross examination, Dr. Glass conceded, albeit with "great astonishment," that defendant had been found competent to represent himself in a criminal case in Pennsylvania. The doctor said that defendant knew the charges against him in this case. He also understood the role of his defense attorney, although the doctor said that defendant "interprets it in a paranoid fashion." The doctor stated that he had not asked defendant whether he understood that he had a right to testify or not to testify at trial.
In our view, the evidence presented at the hearing provided ample support for the judge's determination that defendant was competent to stand trial. As the testimony reveals, Dr. Paul and Dr. Glass had divergent views on the issue of defendant's competency. However, the judge determined, after considering the testimony and observing the witnesses, that Dr. Paul's testimony was more credible and persuasive than that provided by Dr. Glass.
Clearly, the judge had the discretion to accept or reject any or all of Dr. Glass' opinions, "in light of all of the evidence in the record[.]" M.J.K., supra, 369 N.J. Super. at 549. We are convinced that the judge did not abuse his discretion in finding that defendant was competent to stand trial and that defendant's conduct exhibited aspects of malingering. Those findings are supported by sufficient credible evidence. Johnson, supra, 42 N.J. at 161. Accordingly, we affirm the judge's competency determination.
Defendant additionally argues that his sentence is excessive and he is entitled to be re-sentenced pursuant to State v. Natale, 184 N.J. 458 (2005).
At sentencing, the judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law); and N.J.S.A. 2C:44-1a(11) (imposition of a fine without imprisonment would be perceived as a cost of doing business). The judge found no mitigating factors.
Defendant argues that, in light of the holding in State v. Dalziel, 182 N.J. 494, 502-03 (2005), which was decided after defendant was sentenced, the finding of aggravating factor 11 was erroneous.
Defendant further argues that the judge's finding that there were no mitigating factors is clearly erroneous. Defendant says that, wholly aside from the issue of defendant's competency, he suffers from a mental health "illness" and it is "inconceivable" that the "illness" did not contribute in some manner to his criminal history. Defendant maintains that his mental health "illness" support findings of mitigating factors under N.J.S.A. 2C:44-1b(3) (defendant acted under strong provocation) and N.J.S.A. 2C:44-1b(4) (there were substantial grounds tending to excuse or justify defendant's conduct).
Defendant also points out that no one was injured in the robberies for which defendant pled guilty. Defendant argues that, at most, he should have been sentenced to a base term of fifteen years, with a parole ineligibility period of seven-andone-half years.
We agree with defendant that under Dalziel, the finding of aggravating factor 11 was erroneous. That factor is "inapplicable unless the judge is balancing a non-custodial term against a prison sentence." Dalziel, supra, 182 N.J. at 502. However, we are not convinced that the judge erred in his findings regarding the other aggravating factors, nor are we convinced that the judge erred in declining to find any mitigating factors. Nevertheless, because the erroneous finding of aggravating factor 11 may have had an impact on the sentence imposed, re-sentencing is required.
Re-sentencing also is required by Natale. We note that, although defendant was sentenced on March 1, 2002, and he did not file a notice of appeal until January 9, 2006, we entered an order on March 16, 2006, granting defendant's motion to file his appeal nunc pro tunc. By reason of that order, defendant's appeal is deemed to have been pending when Natale was decided. Therefore, he is entitled to re-sentencing under that decision. Natale, supra, 184 N.J. at 494-95.
Accordingly, we affirm the denial of defendant's motion to suppress and the judge's determination that defendant was competent to stand trial. We remand for re-sentencing in accordance with this opinion.