January 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JASON HEARNS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 of mitigating factor 4 because "he claims to have been under the influences of alcohol and marijuana at the time he committed the offense" and mitigating factor 5 because the record showed the victim was walking away from defendant when he was shot in the head. In conclusion the judge stated:
I find the aggravating factors clearly substantially outweigh the mitigating. In light of all the surrounding circumstances, including the State's concession to forego a conviction for murder, the recommended sentence, although the maximum that can be imposed appears reasonable and one that will serve the interest of justice . . . .
This case demonstrates the difficulty of applying the law regarding the presumptive reasonableness of a negotiated sentence in a sentencing scheme based on aggravating and mitigating factors and the court's inability to consider the fact of a plea in imposing or withholding a sentence of imprisonment. See N.J.S.A. 2C:44-1(c)(1). The negotiated sentence must comport with sentencing guidelines and criteria. See State v. Sainz, 210 N.J. Super. 17, 27-28 (App. Div. 1986), id. at 29 (Fritz, J. concurring); id. at 31 (Baime, J. concurring), aff'd 107 N.J. 283, 291-93 (1987); State v. Kruse, 105 N.J. 354 (1987); State v. Guzman, 199 N.J. Super. 346, 352-53 (Law Div. 1985). Here a sentence ten years above the midrange former presumptive term, with eighty-five percent thereof to be served before parole eligibility, was imposed as part of a negotiated sentence. The problem is compounded because the State and judge appear to view the case as one involving elements of a murder even though the plea was only to aggravated manslaughter. If that were all to the matter, we would order the sentence to be reduced.
It is clear, however, that the trial court in this case views the defendant's background and history as warranting a sentence above the former presumptive term and present mid-range sentence. The trial judge recognized the difficulty of imposing a negotiated plea bargain where the proofs may warrant a conviction for a greater charged offense*fn1 and the negotiated disposition takes that fact into consideration. Even so, the judge found that the defendant's background and history warrant the sentence imposed for the crime to which he admitted his guilt, and under scope of review, we have no authority to overrule that determination. The judge seems firm in his view, and our scope of review is limited, as is our ability to exercise original jurisdiction to modify the sentence. See State v. Jarbath, 114 N.J. 394, 409-12 (1989); State v. Ghertler, 114 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 362-63 (1984). See also R. 2:10-5. In essence, the defendant makes a colorable argument that he has been sentenced to the maximum sentence for aggravated manslaughter because he was treated as if convicted of murder. However, by entering the negotiated plea, defendant acknowledged that the totality of circumstances warranted a maximum thirty-year sentence with a NERA component for aggravated manslaughter, and he avoided a potential sentence of up to life imprisonment with a mandatory thirty years of parole ineligibility if convicted of murder.
See N.J.S.A. 2C:11-3(b). We conclude that there is no basis on which to disturb the sentence imposed.
The presentence report contains defendant's own acknowledgment that he began smoking marijuana and drinking alcohol at age twelve and "became involved with drug distribution at this same age." Irrespective of how others might view these factors or the reasons therefore, the record permits the judge to use the defendant's history and background to reject application of mitigating factors. Moreover, based on defendant's argument related to mitigating factor 4, it appears that there is no dispute of the facts on which the judge decided the mitigating factor was unwarranted, and since State v. Natale, 184 N.J. 458 (2005) was decided before the sentence was imposed in 2006, we cannot say that the judge's fact finding resulted in an increase of the presumptive term.
Accordingly, the judgment is affirmed.