February 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GERARD JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 94-01-0223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 28, 2007
Before Judges Wefing and R. B. Coleman.
Defendant Gerard Jones was tried before a jury in 1995 and found guilty of forty-seven counts of a ninety-one count indictment relating to the operation of a drug distribution ring between July and September 1993. On defendant's direct appeal from his original judgment of conviction (JOC), we issued an unpublished opinion dated May 26, 1998. State v. Jones, Docket No. A-041-95T4 (App. Div. 1998).*fn1 In that decision, we affirmed defendant's convictions and sentence, except in two respects:
(1) we reversed the conviction on count seventy-nine, third degree unlawful possession of a weapon, and remanded for entry of a judgment of acquittal on that count because the trial court had failed to charge on that offense; and (2) we remanded for merger of count eighty-eight, an omnibus or cumulative offense of possession of controlled dangerous substance (CDS), into the other counts charging substantive drug offenses. On October 7, 1998, the Supreme Court denied defendant's petition for certification. State v. Jones, 156 N.J. 424 (1998).
In October 2003, defendant filed a pro se motion and appeal because an amended judgment had been entered and he had never been notified of a re-sentencing hearing. He also filed a pro se petition for post-conviction relief (PCR) at about the same time. While those challenges to his revised judgment of conviction were pending, we entered an omnibus order requiring that appeals of defendants then challenging their sentences be remanded to the Law Division for re-sentencing in accordance with State v. Natale, 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005). Pursuant to our order dated October 27, 2005, the remand court was to determine whether the absence of a presumptive term in the weighing process required the imposition of a different sentence.
The hearing on remand was conducted on March 31, 2006. After considering the issues, the remand judge, who was not the judge who had imposed the original sentence on June 16, 1995 or the amended judgment of conviction dated June 11, 1998, determined that the absence of the presumptive term would not result in a different sentence. Therefore, he imposed the same aggregate sentence of twenty-five years in prison with a fifteen-year period of parole ineligibility. This is reflected in the April 6, 2006 judgment of conviction from which defendant now appeals.
The aggravating factors found by the remand court and listed in the judgment of conviction were (a) the risk that the defendant may commit another offense, N.J.S.A. 2C:44-1a(3); (b) the substantial likelihood that the defendant was involved in organized criminal activity, N.J.S.A. 2C:44-1a(5); (c) the prior criminal record of the defendant, N.J.S.A. 2C:44-1a(6); (d) the defendant was involved in this criminal activity pursuant to an agreement with others to be paid and the pecuniary incentive was beyond that inherent in the offense itself, N.J.S.A. 2C:44-1a(7); and (e) the need for deterring this defendant and others from committing these type of offenses, N.J.S.A. 2C:44-1a(9). The court considered each of the statutory mitigating factors enumerated in N.J.S.A. 2C:44-1b but found, as the original sentencing court had, that no mitigating factors applied.
Defendant filed a timely notice of appeal challenging the remand court's determination and an amended notice of appeal challenging the action on remand for re-sentencing and the denial of defendant's motion for reconsideration of his sentence. In his appellant's brief, defendant sets forth the following points of asserted error:
POINT I: WHETHER OR NOT MR. JONES'S SENTENCE WAS PREMISED ON A CONSIDERATION OF ANY APPLICABLE PRESUMPTIVE TERMS, THAT SENTENCE, BASED AS IT WAS ON JUDICIALLY CREATED FACTS THAT WERE NEITHER CHARGED IN THE INDICTMENT NOR FOUND UNANIMOUSLY AND BEYOND A REASONABLE DOUBT BY THE JURY, IS ILLEGAL AND UNCONSTITUTIONAL.
POINT II: MR. JONES'S SENTENCE AND RESENTENCE WERE ALSO ILLEGAL PURSUANT TO YARBOUGH.
POINT III: BOTH JUDGE BROWN DURING THE ORIGINAL SENTENCING AND JUDGE KENNEDY DURING MR. JONES'S RE-SENTENCING ERRED IN NOT MERGING FOR SENTENCING PURPOSES ALL OF THE THIRD DEGREE CONVICTIONS (THE CONVICTIONS ON SECTIONS 5, 7, AND 10 OF THE CONTROLLED DANGEROUS SUBSTANCES ACT) INTO EITHER THE SECOND DEGREE AGGREGATE WEIGHT CONVICTION (COUNT EIGHTY-EIGHT) OR INTO THE CONSPIRACY CONVICTION (COUNT ONE).
After a careful review of the applicable law and facts on the record, we affirm substantially for the reasons articulated by the remand judge, Judge John C. Kennedy, in his oral opinion from the bench on March 31, 2006. We add, however, the following additional observations.
Defendant asserts that the sentence is based on judicially created facts that were neither charged in the indictment nor found unanimously and beyond a reasonable doubt by the jury. That assertion is, of course, premised on the ruling in Blakely v. Washington, that a sentence based on judicial factfinding that exceeds the maximum sentence authorized by either a jury verdict or a defendant's admissions at a plea hearing runs afoul of the Sixth Amendment right to trial by jury. 542 U.S. 296, 309, 124 S.Ct. 2531, 2540, 159 L.Ed. 2d 403, 417 (2004); Natale, supra, 184 N.J. at 465. In recognition that the presumptive statutory term under the New Jersey Criminal Code was the "statutory maximum" and that the Code's system of presumptive term sentencing violated the Sixth Amendment's right to trial by jury, the Court judicially adjusted the Code by eliminating presumptive terms from the sentencing scheme. Natale, supra, 184 N.J. at 487. The permissible sentence is the maximum of the range for the offense. As the Court explained:
Although judges will continue to balance the aggravating and mitigating factors, they will no longer be required to do so from the fixed point of a statutory presumptive. We suspect that many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence. That would be one reasonable approach, but it is not compelled. Although no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range. In the past, defendants with long criminal records have been sentenced toward the upper part of the sentencing range. They should not anticipate a departure from that practice with the presumptive terms gone.
As always, every judge must "state on the record" how he or she arrived at a particular sentence. N.J.S.A. 2C:43-2(e); see also R. 3:21-4(g) ("[T]he judge shall state reasons for imposing [a] sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence."). We are confident that the judge's obligation to justify the sentence by referencing the mitigating and aggravating factors will continue to bring rationality to the process and minimize disparate sentencing. [Id. at 488.]
The adjustment to comply with the constitutional right to a trial by jury did not substitute jurors as the factfinders determining the applicability of aggravating sentencing factors.
Id. at 486. As noted in the quote above, "[A]lthough judge's will continue to balance the aggravating and mitigating factors, they will no longer be required to do so from the fixed point of a statutory presumptive." Id. at 488; see also Abdullah, supra, 184 N.J. at 506 (reiterating that "we excised the presumptive terms from the Code so that judges, not juries, still will decide the aggravating factors as the Legislature would have intended, and to bring the Code into conformity with the Sixth Amendment.").
Here, the remand court remarked that defendant's criminal record was "a very troubling one" and that defendant was a high risk to commit another offense. The court stated it "[could not] imagine . . . a more glaring example of [an offender] not getting the point of the rehabilitative and punitive aspects of criminal justice system [than] committing an offense while in prison." Therefore, it concluded there was a need to deter the defendant from future offenses. Explaining further, the court told defendant:
You have seen what prison is like. You have seen as a youth and as an adult, and yet go on to commit offenses. I can't again say what the jury said in this case. I find that you need to be deterred from committing these types of offenses. And as I said, your criminal record is one thing. Risk you may commit another offense is very prevalent due to the offense. This offense was committed while in prison, and you obviously have to be deterred from committing offenses like this. I base that upon really the spacings of your convictions, not the convictions themselves. It's kind of a subtle difference there. It seemed that just as you were on the verge of putting the criminal life behind you, you went out and committed another crime. I mean, it was remarkable how closely the criminal offenses occurred after your release from prison.
So, I find that there's need to deter you from these kind of offenses.
There was substantial credible evidence to support the existence of the aggravating factors found by the court. Defendant had a lengthy juvenile history including convictions of third degree theft, second degree robbery, third degree possession of a controlled dangerous substance and criminal attempt. Beginning in 1986, defendant was incarcerated in the New Jersey State Prison system on three occasions prior to these charges. In the present case, defendant conducted all the criminal activity while incarcerated. His record and callous disregard for the justice system demonstrated he would likely re-offend, leading the court to conclude "that the aggravating factors far outweigh the mitigating factors in this case because there are no mitigating factors, and they weigh in favor of a prison term in excess of the midrange term, and in this case the midrange would have been four years, but finding the scale powerfully tipping, it weighs in favor of something more than that; and, of course, what would be more than that, it would be five years." Under these circumstances, we are satisfied we should not disturb defendant's sentence of imprisonment. See State v. Kromphold, 162 N.J. 345, 355 (2000) (finding that sentences will be disturbed where they are clearly mistaken).
Defendant also argues that the sentencing and re-sentencing to consecutive terms were illegal pursuant to State v. Yarbough, 100 N.J. 627 (1985). We disagree. Defendant was convicted on forty-seven counts. These multiple convictions warrant consecutive sentences.
Both Abdullah and Yarbough aimed to create guidelines for the imposition of consecutive sentences. N.J.S.A. 2C:44-5(a) dictates that "[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence[.]" The actual sentencing rests in the exercise of sound discretion by the sentencing court. See Abdullah, supra, 184 N.J. at 512. Yarbough, supra, sets forth a list of general guidelines to be considered in deciding whether consecutive terms are appropriate. 100 N.J. at 643-44.
It is important to note that "there is no presumption in favor of concurrent sentences . . . ." Abdullah, supra, 184 N.J. at 513-14; see N.J.S.A. 2C:44-5(a). Indeed, a court may still impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences. State v. Carey, 168 N.J. N.J. 413, 427-28 (2001); see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div. 2000). When committing several distinct criminal acts and facing trial for them, the criminal "'knows he is risking' an aggregate sentence covering all the offenses he has committed." Abdullah, supra, 184 N.J. at 514 (quoting Blakely, supra, 542 U.S. at 309, 124 S.Ct. at 2540, 159 L.Ed. 2d at 403).
Both the original sentencing court and the court on remand considered these factors in arriving at the prison term imposed upon defendant. The original sentencing judge stated "[t]hese sentences are all being run consecutive to each other because in the opinion of the court they were different occurrences occurring on different occasions. There are no free crimes under our system." The judge on remand similarly found:
What I have to consider here are factors under State v. Yarbough, and that case teaches us as follows: The court is empowered to impose consecutive sentences if they find, for example, the object of the crime was different if they were committed at different times involving different victims, and the offenses were numerous. . . .
I find in reviewing these records, that you know, there were 17 separate incidents of possession, possession with intent, or distribution over a course of months. People are sent to state prison every day for up to five years with three years parole ineligibility for one distribution with intent within a thousand feet of a school zone, but here you and your pals organized a series of distributions, commercial enterprise of distributions over the course of time from July 21, '93 up through and including September of 1993.
So, I find the following: I find that each one of these separate acts of possession with intent and/or distribution had a different object. That is another pecuniary gain for you. Each one of them had a separate pecuniary gain. I also find these offenses, of course, occurred over different times. They also involve different victims.
So, I find that the absence of presumptive term in the weighing process does not result in a different sentence here, and I find the Yarborough [sic] factors when viewed, and filtered through State v. Abdullah warrant impossing [sic] the same sentencing scheme that Judge Brown had imposed in 1998 after the first Appellate Division remand. [(emphasis added).]
Defendant argues the aggregate sentence should be between five to ten years in prison. That is no more than the statutory range for a single second degree offense. Defendant, in fact, committed several separate crimes while he was incarcerated. As the remand judge appropriately viewed the matter, each drug transaction involves different illegal substances, accompanied by distinct victims and pecuniary rewards. Although drug offenses may not always carry the same displays of violence as other crimes, they are not victimless crimes. In the end, "[t]he touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court." Natale, supra, 184 N.J. at 488. In light of all the relevant factors identified by the sentencing court, an aggregate sentence between five and ten years would not have been reasonable.
Defendant's last contention regarding merger was addressed in an earlier opinion of this court. State v. Jones, Docket No. A-041-95T4 (App. Div. May 26, 1998) (slip op. at 7-9, 15-16).
We stated there:
Jones argues that his convictions on the counts charging him with possession of a controlled dangerous substance with the intent to distribute it (counts 31, 37, 74 and 86), his convictions on the counts charging him with distribution (counts 7, 9, 11, 13, 15, 19, 21, 23, 25, 33, 35, 40, 42, 48, 50, and 60), and his convictions on the counts charging him with distribution of, or possession with the intent to distribute, a controlled dangerous substance while within 1000 feet of a school (counts 8, 10, 12, 14, 16, 20, 22, 24, 26, 32, 34, 36, 39, 41, 43, 49, 51, 61, 75 and 87) should all merge into his conviction on count 88 charging him with possession from June 19 to September 22, 1993, cumulatively and in all of the locations stated in the indictment, of controlled dangerous substances with the intent to distribute them.
We conclude that for the purpose of sentencing, the conviction on count 88 should merge into the convictions for the substantive drug counts charging individual transactions. N.J.S.A. 2C:35-5c is permissive. Its evident purpose is to permit a sentence to be enhanced by aggregating the quantities of controlled dangerous substances involved in separate, but related, transactions. To merge the convictions for the individual transactions in the conviction of the omnibus count, as Jones urges us to do, would have an effect contrary to what the Legislature intended, minimizing rather than enhancing Jones' aggregate penalty. [Id. at 14-15.]
Defendant's current argument is essentially the same. If it is not the identical argument, it is so similar that we see no reason to revisit this point.