On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-09-1858-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 10, 2008 on the Sentence Oral Argument calendar -
Before Judges Stern and Newman.
Defendant appeals from a judgment of July 27, 2006, embodying a sentence of thirty years in the custody of the Commissioner of the Department of Corrections with eighty-five percent thereof to be served before parole eligibility. The sentence was imposed as a result of our order of June 1, 2006, remanding "for consideration of the mitigating factors." That order constituted the third remand of the matter, and the judgment of July 27, 2006 constituted the fourth time the same sentence was imposed. We affirm the judgment.
On April 9, 2001, defendant entered a negotiated guilty plea to the crime of aggravated manslaughter, as amended from murder, in exchange for dismissal of two weapons offenses and a recommended sentence of thirty years to be served in the custody of the Commissioner of the Department of Corrections with eighty-five percent thereof to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. That sentence was imposed by Judge Manuel H. Greenberg on May 4, 2001. Judge Greenberg noted that "defendant's youth and lack of criminal record" were "in all likelihood" considered when the negotiated disposition was entered, and that aggravating factors 3 and 9 applied. See N.J.S.A. 2C:44-1(a)(3),(9). The judge found no mitigating factors. See N.J.S.A. 2C:44-1(b).
Defendant appealed to us and challenged the sentence imposed. By order dated February 6, 2002, we remanded "for a detailed statement of reasons for the imposition of the sentence . . . with particular emphasis upon the basis for imposition of the maximum term." As Judge Greenberg had retired by then, on March 5, 2002, Judge Albert Garofolo entered a new judgment, with a sentence date retroactive to May 4, 2001, including supplemental reasons of his own. The judge noted the amended charge and dismissal of the weapons offenses:
[w]as a significant concession by the State inasmuch as there is substantial proof that the defendant did purposely and/or knowingly kill the victim as evidenced by the single gunshot wound to the victim's head. Thus, it is the plea agreement itself which supports most strongly the imposition of the maximum sentence for aggravated manslaughter.
The judge further noted that defendant's "lifestyle was not one of having [led] a law abiding life. It appears that he began using and distributing CDS at the age of 12....," and the judge emphasized the particular need for deterrence against CDS use and "gang related homicides involving youths of Atlantic City." In any event, the judge found that the negotiated disposition and "recommended sentence, although the maximum that can be imposed, appears reasonable and one that will likely serve the interests of justice."
On January 29, 2004, after re-argument following the remand, we affirmed the sentence. We found that Judge Garofolo "provided a satisfactory statement of reasons" and, based on "our independent review," concluded that the sentence "on the charge of aggravated manslaughter, downgraded from murder, was not excessive, was reasonable, and does not constitute an abuse of sentencing discretion."
Defendant subsequently petitioned for certification, and the Supreme Court summarily reversed and remanded "for a new hearing on defendant's sentence in the presence of defendant." The Court added that "[t]he sentencing judge shall impose an appropriate sentence after weighing the impact of relevant aggravating and mitigating factors to the presumptive term for aggravated manslaughter." State v. Hearns, 180 N.J. 448, 448-49 (2004).
Defendant was resentenced on September 3, 2004, and received the same sentence. The details of the event were developed as was defendant's acknowledgment during the presentence investigation "that he had been selling drugs since he was 12 years old" and that the victim was shot in the head. Judge Garofolo found no support for a claim of self-defense which was found not to apply at the time of plea. The judge also found no basis for mitigating factor 7 "to apply given the admission of ongoing criminality from the age of 12" and that "the plea agreement recommending the maximum term of imprisonment for aggravated manslaughter" was "reasonable under all the facts and circumstances of this case," particularly because "there is ample support in the record that the defendant's conduct was knowing, if not purposeful."
As previously noted, on June 1, 2006, we again "reversed" the sentence and "remanded for consideration of the mitigating factors." Thereafter, on July 27, 2006, the Law Division resentenced defendant again. Defense counsel indicated that he was reasserting the mitigating factors that he asserted in 2004, and argued mitigating factor 4 existed because defendant had "a severe drug and alcohol addiction" as he had been "using illegal substances since he was 12 years old," and was "high at the time of offense." The defendant further stated "he was forced out of his home onto the street as a 12-year-old due to family circumstances" and had "no history of prior delinquency or no adjudications and no prior criminal history at all." The prosecutor responded by stating that "this was a killing that was execution-style" and "defendant received the offer he did, a plea to aggravated manslaughter with the maximum . . . because of his age."
In imposing the same sentence again, Judge Garofolo recognized the impact of a negotiated sentence to the top of the range and that a reasonable negotiated plea might not be dispositive if the maximum sentence was not "justified given a pristine finding of aggravating and mitigating factors and the weighing of the . . . aggravating and mitigating factors." The judge also noted that because this was a plea case, he was "not well positioned to make findings as to certain alleged mitigating factors because the Court heard no . . . testimony from one side or the other." The judge then repeated the aggravating factors he previously found and stated that "through the plea agreement [defendant] was able to avoid possible conviction for the crime of murder" because "there is substantial proof that the defendant did purposely and/or knowingly kill the victim as evidenced by the single shotgun wound to the victim's head." The judge specifically rejected the application of mitigating factor 7 as "not worthy of substantial weight, given the defendant's admitted lifestyle from the age of 12 to the time . . . this crime was committed." The judge rejected application ...