On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 01-10-1227.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2006 - Remanded by Supreme Court April 8, 2008
Before Judges Stern, A. A. Rodríguez and Sabatino.
We reversed defendant Carlos Feal's convictions for murder, N.J.S.A. 2C:11-3a(1); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The Supreme Court granted certification, 192 N.J. 71 (2007), and affirmed the convictions with the following instruction: "The matter is remanded to [the Appellate Division] for disposition of the remaining issues raised by defendant on appeal." State v. Feal, 194 N.J. 293, 313 (2008). The remaining contentions are:
THE SENTENCE IMPOSED ON THE MURDER CONVICTION IS MANIFESTLY EXCESSIVE. THE SENTENCE IMPOSED ON THE UNLAWFUL POSSESSION OF A WEAPON CONVICTION VIOLATES DEFENDANT'S RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY TRIAL.
A. The 40 Year Term Is Manifestly Excessive.
B. The Maximum Term On The Third-Degree Offense Violates Defendant's Right To Due Process And His Right To A Jury Trial.
We disagree with the first contention. However, we agree that a remand for resentencing is appropriate for the third-degree offense.
At the time of sentencing, defendant was thirty-three years old. He had no history of prior convictions. The judge found one of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (9) the need for specific and general deterrence from violating the law. The judge noted that to be "a very weighty aggravating factor." The judge also found one of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (7) "defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[.]" He also found by clear and convincing evidence that the aggravating factor "substantially outweighs" the mitigating factor and imposed a forty-year term with a thirty-year parole disqualifier on the murder conviction and a concurrent five-year term on the unlawful possession of a weapon conviction.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. Id. at 215-16; State v. Roth, 95 N.J. 334, 364-65 (1984). However, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L.Ed. 2d 403 (2004), and State v. ...