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State v. Hodges

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 2, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CEDRICK HODGES, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 01-08-1116 and 01-08-1117; and Accusation No. 04-02-0155.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2008

Before Judges Fuentes and Gilroy.

Defendant, a minor born June 26, 1983, was charged as a juvenile with committing various acts which, if committed by an adult, would have constituted the crimes of first-degree aggravated assault, kidnapping, armed robbery, and other related offenses. On July 31, 2001, the Family Part granted the State's motion for an involuntary waiver of jurisdiction to the Law Division, Criminal Part, N.J.S.A. 2A:4A-26; R. 5:22-2.

On August 29, 2001, a Mercer County Grand Jury charged defendant under Indictment No. 01-08-1116 with eight counts of first-degree robbery, N.J.S.A. 2C:15-1 (Counts One through Eight); eight counts of fourth-degree aggravated assault by pointing a handgun at or in the direction of another person, N.J.S.A. 2C:12-1b(4) (Counts Nine through Sixteen); first-degree kidnapping, N.J.S.A. 2C:13-1b (Count Seventeen); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2 (Counts Eighteen and Nineteen); third-degree terroristic threats, N.J.S.A. 2C:12-3b (Count Twenty); five counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Counts Twenty-One through Twenty-Five); eight counts of second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4 (Counts Twenty-Six through Thirty-Three); and third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7 (Count Thirty-Four).

On the same day, defendant was also charged under Indictment No. 01-08-1117 with two counts of first-degree robbery, N.J.S.A. 2C:15-1 (Counts One and Two); first-degree kidnapping, N.J.S.A. 2C:13-1b (Count Three); four counts of second-degree attempt to commit aggravated sexual assault, N.J.S.A. 2C:14-2 and 2C:5-1 (Counts Four through Seven); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2 (Counts Eight and Nine); two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts Ten and Eleven); third-degree terroristic threats, N.J.S.A. 2C:12-3b (Count Twelve); two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (Counts Thirteen and Fourteen); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1 (Counts Fifteen and Sixteen); two counts of second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Seventeen and Eighteen); and third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7 (Count Nineteen).

Defendant moved to suppress the statements he made to the police on September 8, 2000. Following an evidentiary hearing on November 21 and December 10, 2003, the trial court denied the motion.

On February 25, 2004, defendant was charged under Accusation No. 04-02-0155 with an additional count of first-degree robbery, N.J.S.A. 2C:15-1. On the same day, defendant entered into a negotiated plea agreement and pled guilty to: Count Seventeen of Indictment No. 01-08-1116, charging him with first-degree kidnapping; Counts One and Eight of Indictment No. 01-08-1117, charging him with first-degree robbery and first-degree aggravated sexual assault, respectively; and the single count of first-degree robbery in the Accusation. In exchange, the State agreed to dismiss all other charges and to recommend an aggregate sentence of twenty years, subject to the No Early Release Act (NERA).*fn1

On June 4, 2004, defendant was sentenced on Count Seventeen under Indictment No. 01-08-1116 to a twenty-year term of imprisonment; on Counts One and Eight under Indictment No. 01-08-1117 to a term of twenty years of imprisonment on each conviction; and to a fifteen-year term of imprisonment on the conviction under the Accusation. All sentences are subject to an 85% period of parole ineligibility pursuant to NERA, and run concurrent to each other. The court also imposed all appropriate fines and penalties, and dismissed the remaining charges.

On appeal, defendant's counsel argues:

POINT I.

THE DEFENDANT'S STATEMENT WAS THE UNATTENUATED PRODUCT OF AN ILLEGAL ARREST, NECESSITATING SUPPRESSION. U.S. CONST., AMENDS. IV, XIV; N.J. CONST. (1947), ART. 1, PAR. 7.

POINT II.

THE COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

In a pro se supplemental brief, defendant argues:

POINT I.

DEFENDANT'S MOTION TO SUPPRESS THE STATEMENT GIVEN BY THE DEFENDANT SHOULD HAVE BEEN GRANTED WHERE THE STATEMENT, (A) [WAS] THE FRUIT OF AN UNLAWFUL ENTRY AND ARREST OF A[N] UNCONSTITUTIONAL PROTECTED AREA WITHOUT A VALID WARRANT AND, (B) WHERE NO EXIGENT CIRCUMSTANCES OR PROBABLE CAUSE EXISTED TO ENTER THE HOME. THE COURT VIOLATED THE FOURTH AMENDMENT AND ITS EXTENSION UNDER NEW JERSEY LAW. THEREFORE ALL EVIDENCE MUST BE SUPPRESSED [DUE] TO THE ILLEGAL ENTRY AND ARREST.

POINT II.

DEFENDANT'S CONFESSION WAS THE PRODUCT OF POLICE COERCION AND THEREFORE ITS ADMISSION INTO EVIDENCE VIOLATED THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

We affirm the convictions, but remand for re-sentencing.

I.

The arguments presented in Point I of defense counsel's brief and in Points I and II of defendant's pro se supplemental brief challenge the trial court's denial of defendant's pre-trial motion to suppress the statements he made to the police on September 8, 2000. Testifying at the motion hearing on behalf of the State were Detectives Richard Braconi and Leonard Gadsby of the Hamilton Township Police Department; testifying on behalf of defendant was Dlaby Hodges, defendant's mother.*fn2

We briefly state the facts as adduced from the transcripts of the hearing on the motion. Braconi testified that, during the early morning hours of August 13, 2000, an armed robbery and a sexual assault occurred at a residence in the Township. Braconi, along with several other police officers, immediately commenced investigation of the crimes. The victims gave the police a description of the perpetrator.

Later that morning, the police discovered a stolen Buick LeSabre motor vehicle at the intersection of Church Street and Route 156. After returning the motor vehicle to its rightful owner, the owner reported to the police that he found a cellular phone in the vehicle. A subsequent investigation disclosed that the phone had been taken in the robbery. Two days later, Gadsby, accompanied by Detective Shannon Magione, returned to the place where the vehicle had been found. On observing the immediate area, the detectives noticed various items of makeup that a woman would typically keep in her pocketbook strewn on the ground, leading to the Eagle Rock apartment complex across the street. A subsequent investigation disclosed that the items were from a pocketbook taken during the robbery.

Believing that the crimes may have been committed by an individual who resided in the apartment complex, Braconi and Gadsby commenced searching the vicinity for other stolen motor vehicles. During a surveillance on a subsequent day, the two detectives discovered a stolen white Jeep with a shattered rear window, with what appeared to be blood stains inside the vehicle. After learning that the Jeep had been stolen from Trenton, Braconi contacted a detective from that city, informing him that the Jeep had been found. The Trenton detective told Braconi that the Jeep had been used in an incident similar to that which Braconi was investigating in Hamilton, that is, an incident where an individual "robbed a male and a female,... kidnapped the female... in the white Jeep, drove her to a secure location in the park and attempted to sexually assault [the] young lady." In addition, the detective informed Braconi that during the sexual assault, the perpetrator told the victim that he recently had been released from prison.*fn3

Based on the statement given by the Trenton victim, Braconi and Gadsby contacted several parole officers, inquiring whether the suspect's description "fit anybody that they were in charge of." Juvenile Parole Officer Bowford informed Braconi that the description matched that of defendant who resided at the Eagle Rock apartment complex. After the detectives were advised that defendant's fingerprints had been recovered from a third stolen motor vehicle found in the vicinity of the apartment complex, Braconi requested Bowford to accompany him to defendant's residence.

On September 8, 2000, although the officers did not have an arrest warrant for defendant, Braconi, Gadsby and Bowford went to defendant's apartment, where Bowford initially inquired of defendant whether he would speak to the detectives. After defendant affirmatively responded, Braconi and Gadsby entered the apartment, asking defendant whether he was willing to talk with them at police headquarters. Defendant again responded affirmatively. Before transporting defendant to police headquarters, the detectives never informed defendant that he was under arrest, never informed him of his Miranda*fn4 rights, or handcuffed him. On route to the police headquarters, the detectives did not question defendant. When Braconi was asked what he would have done if defendant had refused to accompany the officers to police headquarters, Braconi replied: "[S]aid goodbye and turned around and walked away." When asked whether he was there to place defendant under arrest, Braconi further replied: "There was no arrest warrant for him, we had no interest in placing him under arrest at that time."

On arrival at police headquarters, defendant was placed in an unlocked interview room and asked whether he wanted anything to eat or drink. While in the interview room, defendant was never handcuffed or restrained in any manner. According to Braconi, if defendant had told him that he "wanted to leave," he "would have [driven] him home." However, defendant never made such a request.

After learning that defendant's mother was at work, Braconi contacted her, informing her that defendant was at headquarters, and that he and Gadsby wanted to speak to him about any involvement he may have had in the theft of the motor vehicles. Defendant's mother arrived at headquarters twenty minutes later.

In the interim, the detectives did not speak to or question defendant.

On arrival, defendant's mother sat at a conference table where Braconi explained to her that he, Gadsby and Bowford had gone to her apartment requesting her son to accompany them to police headquarters. The detectives told defendant's mother that they wanted to speak to him about the stolen motor vehicles and that his fingerprints had been found in one of them. However, the detectives did not inform her of the armed robbery, sexual assault, or the other related crimes that they were investigating. Rather, it was their intention to question defendant about the stolen motor vehicles; and if defendant verbally acknowledged involvement with the vehicles, they would then question him about the additional crimes.

Following their discussion with defendant's mother, she executed a juvenile consent form, permitting the detectives to talk to and take a formal statement from her son. After Hodges executed the form, both she and defendant were presented with a Miranda rights form. Braconi read the Miranda form and the Waiver of Rights form to both of them. After reading the forms, defendant and his mother indicated that they understood the Miranda form and agreed that defendant would answer the detectives' questions. Accordingly, both defendant and his mother signed the Miranda waiver forms in the presence of the detectives.

During questioning concerning the two motor vehicles, defendant's mother was present. Defendant admitted that he had stolen both vehicles and advised the detectives of the locations where he had abandoned them. On receiving that information, the detectives asked defendant's mother to step outside the interview room to talk to her.

Once outside the room, Braconi informed defendant's mother of the connection between the stolen motor vehicles and the other crimes that occurred in Hamilton and Trenton. Braconi informed her that they intended to question defendant concerning the other crimes. According to Braconi, Hodges mother told him that she was embarrassed by her son's actions, and it was something that was going to be very difficult for her to handle emotionally. Although Hodges told the detectives that they had her permission to continue to speak with her son, she refused to return to the interview room and left police headquarters.

However, prior to leaving, Hodges requested to speak privately with her son to inform him that she did not want to stay for the remainder of the interview. The detectives acquiesced in her request before resuming their questioning of defendant. On opening the interview room door after three or four minutes to see if he could resume questioning defendant, Braconi overheard Hodges tell her son "to tell the truth and cooperate with the police."

Approximately twenty minutes had elapsed from the time defendant was initially advised of his Miranda rights to when the detectives resumed questioning him. At that point, according to Braconi, defendant was not free to leave. However, he remained cooperative and provided a verbal statement to the police. Desiring to obtain a formal statement from defendant, the detectives again read defendant his Miranda rights, which were printed at the top of the formal written statement form. Defendant acknowledged that he understood his rights and stated that he would talk to the detectives. The formal statement was obtained via question and answer format, with Braconi typing the questions and answers as they were presented to defendant and defendant responded. After defendant provided the detectives with a formal statement of his involvement in the crimes, he was presented with the original statement; he initialed the Miranda waiver form; and signed and dated the statement.

Gadsby's testimony mirrored that of Braconi's as to their encounter with defendant at his apartment, en route to police headquarters, and the events that occurred thereafter. However, contrary to Braconi's testimony, Gadsby testified that before they transported defendant from his apartment to police headquarters, they patted him down to check for weapons.

Hodges testified that, at approximately 10:30 or 11:00 a.m. on September 8, 2000, she received a telephone call from one of the detectives while she was at work. Initially, she informed the detective that she could not leave her place of employment because no one was there to take her place. A short while later, she received a second telephone call during which one of the detectives told her that she "would just have to come down and sign the papers and then [she] could leave." Having formed the impression that she did not have a choice, she proceeded to the Hamilton Township police headquarters.

On arrival, she was informed that the detectives "wanted to question [her son] about some stolen cars." On presentation of the consent form, she signed it without reading it because it had been presented to her by the police and "if they say sign it, you sign it." At the time, she believed that her son was under arrest and that she could not leave police headquarters with him. After the police questioned her son concerning the stolen cars, one of the detectives asked her if she was ready to go back to work. The detective walked her out of the interrogation room and told her "that one of the cars was connected to a sexual assault." She responded that her son would not have committed such an act. She then told the detective goodbye, left police headquarters, and returned to work.

At the conclusion of Hodges' testimony, the trial court rendered an oral opinion denying defendant's motion. The court reasoned that defendant had not been formally arrested or restrained in his freedom of movement at his apartment; but rather defendant was first subject to restraint of movement after he admitted he stole the two motor vehicles used in the other crimes during his post-Miranda interrogation at police headquarters in the presence of his mother. Accordingly, the court concluded that, because defendant had not been arrested at his apartment, the statements he provided to the detectives at police headquarters were not tainted by an illegal detention.

Alternatively, the court found that, even if defendant had been restrained in his freedom of movement at his apartment to the degree associated with an arrest, summonsing defendant's mother to police headquarters, providing defendant and his mother with their Miranda warnings, and permitting defendant to converse privately with his mother were sufficient intervening events purging defendant's statements from what may have been an illegal arrest.

II.

Defense counsel in Point I and defendant in Point I of his pro se supplemental brief argue that defendant's statements were obtained in violation of his Fourth Amendment rights. Defendant contends that the police illegally arrested him at his apartment because it occurred "in the absence of a warrant or probable cause." Defendant asserts that his statements to the police should have been suppressed as products of an illegal de facto arrest because "the temporal line between the illegal... arrest and the purported confessions was essentially unbroken."

Defendant first argues that the trial court erred in determining that he was not illegally arrested by the police without a warrant at his apartment. Defendant contends that the facts adduced at the suppression hearing establish that he was illegally arrested because an "objectively reasonable person [would have believed] that his or her right to move has been restricted." State v. Rodriguez, 172 N.J. 117, 126 (2002). Although defendant's argument is not without merit, the police having approached him in the presence of his parole officer, an individual who exercised supervision over defendant, we determine that we need not decide whether he was improperly restricted in the freedom of his movement at the apartment. We conclude that the trial court correctly determined that defendant's post-Miranda statements were otherwise admissible because of subsequent intervening events.

An appellate court's scope of review of a trial court's factual determination is limited. We are obligated to "review the record in the light of the contention, but not initially from the point of view of how [we] would decide the matter if [we] were the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Factual findings of the trial judge are generally given deference, especially when they "are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid.; accord State v. Locurto, 157 N.J. 463, 470-71 (1999). When the appellate court is satisfied that the findings of the trial court could reasonably have been reached on sufficient, credible evidence in the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." Johnson, supra, 42 N.J. at 162. "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." Ibid.

The Fourth Amendment and Article I, paragraph 7 of the New Jersey State Constitution protect individuals against unreasonable searches and seizures. State v. Johnson, 171 N.J. 192, 205 (2002). Accordingly, "the Fourth Amendment does not proscribe all searches and seizures, but only those that are judicially deemed unreasonable." State v. Bruzzese, 94 N.J. 210, 217 (1983). Where a warrant for a search or seizure has been obtained, the burden of proving the unreasonableness of the search or seizure is upon the defendant. State v. Valencia, 93 N.J. 126, 133 (1983). However, a warrantless search or seizure is presumed to be unconstitutional, and the burden shifts to the State to prove that it was reasonable. Ibid.

"As a general rule, a confession obtained through custodial interrogation after an illegal arrest should be excluded unless the chain of causation between the illegal arrest and the confession is sufficiently attenuated so that the confession was 'sufficiently an act of free will to purge the primary taint.'" State v. Worlock, 117 N.J. 596, 621 (1990) (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416-17, 9 L.Ed. 2d 441, 454 (1963)). Stated differently, "[s]tatements following an illegal arrest must be excluded from evidence only if they are causally related to the invasion of the suspect's rights." State v. Barry, 86 N.J. 80, 89, cert. denied, 454 U.S. 1017, 102 S.Ct. 553, 70 L.Ed. 2d 415 (1981). The determination of whether a confession is admissible is fact sensitive. Worlock, supra, 117 N.J. at 622.

In Brown v. Illinois, the United States Supreme Court created a three-part test to determine whether a confession following an illegal arrest must be excluded. 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed. 2d 416 (1975). Applying the Brown factors to this determination, our Court has stated:

Considering the purposes of the exclusionary rule in these matters... and the competing purpose of discovering the truth in a criminal trial, the court is required to make a value judgment by considering three factors as they relate to those purposes: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. [Barry, supra, 86 N.J. at 87.]

The first factor, temporal proximity, has been held the "least determinative" of all of the factors. Worlock, supra, 117 N.J. at 623. This is so because, while a confession given shortly after an arrest "may result from pressures generated by the shock of detention," a long detention "may compound the taint of the confession." Ibid. The conditions of detention are equally as important because "[a] congenial atmosphere can neutralize the assumption that a confession given after a short period of detention is the product of an illegal arrest." Ibid.

(where "the relaxed atmosphere surrounding the interrogation did not aggravate, and may have attenuated, the taint of the arrest").

"Intervening events, which serve as objective indications that the causal connection between the arrest and confession has been broken, can be the most important factor in determining whether a confession is tainted." Ibid. In the face of egregious police conduct, the State should show some "'demonstrably effective break in the chain of events leading from the illegal arrest to the statement, such as actual consultation with counsel or the accused's presentation before a magistrate for a determination of probable cause.'" Id. at 623-24 (quoting Brown, supra, 422 U.S. at 611, 95 S.Ct. at 2265, 45 L.Ed. 2d at 432); see also State v. Chippero, 164 N.J. 342, 361 (2000) (finding that "the causal chain between defendant's arrest and confession essentially was unbroken" where, "from his arrest to his confession, he was in custody and in the presence of police officers" and "[h]e spoke with neither family nor counsel").

The third factor is the purpose and flagrancy of the police misconduct, which is "'particularly' relevant to determining whether a confession is the 'fruit' of that arrest." Worlock, supra, 117 N.J. at 624. That factor "requires consideration of the manner in which the defendant was arrested, detained, and interrogated." Chippero, supra, 164 N.J. at 357 (excluding a defendant's confession after the "defendant's mother was dissuaded from obtaining legal representation for her son"); see also Worlock, supra, 117 N.J. at 624-25 (finding the confession admissible where "the police conduct was more casual than calculating", as they "sought defendant to question him concerning the shootings, not necessarily to arrest him").

Here, the trial court, after determining that defendant was not improperly restrained in his freedom of movement at the apartment, proceeded to render an alternative determination that, even if defendant had been improperly restrained, the statements were otherwise admissible because of intervening events. In so reasoning, the court found the detectives' testimony concerning the circumstances pertaining to their encounter with defendant credible, and the testimony of defendant's mother concerning the events at police headquarters not credible. Accordingly, the trial court determined that the police treated defendant deferentially and did not handcuff him at his apartment or question him in the police vehicle on route to police headquarters. On arrival at police headquarters, defendant was placed in an unlocked interview room and offered food and drink, pending his mother's arrival.

The court further found that the detectives did not question defendant before his mother arrived at headquarters and signed the consent form authorizing the detectives to question her son. No questioning occurred until Miranda warnings were provided to both defendant and his mother, with each executing the appropriate waiver forms. After defendant admitted that he had stolen the two motor vehicles related to the other crimes, the detectives informed defendant's mother that they intended to question him further concerning those other crimes and permitted her to speak privately with defendant for three or four minutes before doing so.

Based on the trial court's findings of fact, we are satisfied that the court properly determined that the statements were admissible because of intervening events that freed the statements from any taint of the alleged improper arrest at the apartment.

III.

We now address the arguments raised by defendant in Point II of his supplemental pro se brief. Defendant argues that the trial court should have suppressed his statements as they were obtained in violation of his Fifth Amendment rights. Defendant contends that before questioning, the police were required to advise both he and his mother that the police were investigating not only crimes of thefts of automobiles, but also the crimes of sexual assault and robbery. Defendant asserts that before being questioned a second time concerning the latter crimes, the police were obligated to obtain a second written consent form from his mother, authorizing the additional questioning.

We have considered defendant's arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Defendant argues that, in addition to the detectives having provided him and his mother with their Miranda warnings, the detectives were required to inform them before questioning that he was a suspect in not only the crimes pertaining to the theft of the automobiles, but also in the sexual assaults and robberies. Defendant contends that failure to so advise him requires suppression of his statements. We disagree.

"In determining the voluntariness of a defendant's confession, we traditionally look to the totality of the circumstances to assess whether the waiver of rights was the product of a free will or police coercion." State v. Nyhammer, __ N.J. __, __ (2009) (slip op. at 23). The failure of police to advise an individual that he is a suspect after being read his Miranda rights will not result in the per se suppression of that individual's confession; the failure is only "one of many factors to be considered in the totality of the circumstances" test. Id. at 31. This is so because, "[u]nlike the issuance of a criminal complaint or arrest warrant, suspect status is not an objectively verifiable and discrete fact, but rather an elusive concept that will vary depending on subjective considerations of different police officers." Id. at 27.

Here, defendant does not contest that he and his mother were properly provided with their Miranda warnings before the police questioned him. Because there is no right to be informed that one is a suspect of having committed a crime before questioning, we conclude that, based on the trial court's findings that the detectives' testimony was credible concerning the circumstances surrounding defendant's statements, the statements were knowingly and voluntarily provided to the police, defendant having waived his Miranda rights.

IV.

We now address defendant's arguments challenging his sentences. Defendant argues that the aggregate twenty-year sentence was excessive, necessitating a reduction. Defendant contends that, although the trial court noted in the judgments of conviction a finding of aggravating sentencing factors N.J.S.A. 2C:44-1a(6) and (9), it did not state its reasons for doing so at time of sentencing. Defendant asserts that the trial court improperly found sentencing aggravating factors N.J.S.A. 2C:44-1a(1) and (2). Lastly, defendant argues that the trial court failed to properly analyze and consider the aggravating and sentencing factors, "attempt[ing] to justify the sentence by delivering a virtual tirade, punctuated by inappropriate excursions into amateur psychology." For reasons that follow, we agree that the sentences must be vacated and the matter remanded for re-sentencing on all counts.

When reviewing a sentence, we determine whether the trial court exercised its discretion "based upon findings of fact that are grounded in competent, reasonably credible evidence," and whether the court applied the correct legal principles to those findings. State v. Roth, 95 N.J. 334, 363 (1984). We will only reverse a sentence where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994); accord, State v. Cassady, ___ N.J. ___, ___ (2009) (slip op. at 20).

In determining the appropriate sentence to be imposed on an individual convicted of a crime, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 363 (1984). In finding the appropriate aggravating and mitigating factors, the sentencing court "shall state on the record the reasons for imposing the sentence, including... the factual basis supporting its findings of particular aggravating or mitigating factors affecting sentence." N.J.S.A. 2C:43-2e; State v. Natale, 184 N.J. 458, 488 (2005) (Natale II). In addition, the sentencing court may not double count the aggravating factors, that is, "where the [L]egislature has already taken certain aspects of the nature and circumstances of the offense into account in grading, the court may not consider those same aspects again as aggravating factors." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:44-1 (2008).

The trial court imposed sentence on June 4, 2004, prior to the Court's decision in Natale II where it held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale II, supra, 184 N.J. at 466. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487.

However, the Natale Court did not prohibit the imposition of a sentence above the then-presumptive term when the defendant either stipulates to the aggravating factor or implicitly consents to judicial factfinding. Id. at 495. A defendant may impliedly consent to judicial factfinding of aggravating factors for the purpose of imposing a sentence exceeding the then-presumptive term by expressly agreeing to the sentence pursuant to a negotiated plea in exchange for the dismissal of other charges. Ibid. n. 12; State v. Thomas, 392 N.J. Super. 169, 185-86 (App. Div.), certif. denied, 192 N.J. 597 (2007); State v. Soto, 385 N.J. Super. 247, 252-55 (App. Div.), certif. denied, 188 N.J. 491 (2006). It is against these principles that we consider defendant's arguments.

Here, on the record, the trial court found aggravating factors: N.J.S.A. 2C:44-1a(1) (the crimes were committed in an especially heinous, cruel or depraved manner); N.J.S.A. 2C:44-1a(2) (the gravity and seriousness of harm inflicted on the victims); and N.J.S.A. 2C:44-1a(3) (the risk defendant will commit another offense). Although not stated at the time of sentencing, the court indicated in the judgments of conviction that it found two other aggravating factors: N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court did not find any mitigating factors.

We first address the sentences imposed on Counts One and Eight under Indictment No. 01-08-1117, first-degree robbery and first-degree aggravated sexual assault, respectively. At time of sentencing, the presumptive term for a first-degree crime was fifteen years, N.J.S.A. 2C:44-1f(1), the midpoint between the ordinary sentencing range of ten to twenty years. N.J.S.A. 2C:43-6a(1). Generally, because sentences were imposed pursuant to a negotiated plea agreement in exchange for the State dismissing numerous other charges, and defendant was fully informed of the recommended sentences prior to the court accepting the pleas, we would not disturb the sentences imposed solely because they exceeded the then-presumptive term. Natale II, supra, 184 N.J. at 495; Thomas, supra, 392 N.J. Super. at 185-86; Soto, supra, 385 N.J. Super. at 252-55. However, we are constrained to vacate the sentences for other reasons.

The trial court did not express its reasons for finding aggravating sentencing factors (6) and (9). Nor did the court fully explain its reasons for finding aggravating sentencing factors (1) and (2). We cannot tell from the record whether the trial court impermissibly used elements of the offenses as a basis for finding aggravating sentencing factors (1) and (2). Specifically, we cannot determine if the court concluded the fact that defendant threatened the victims with use of a weapon during the commission of the robbery; or the fact that defendant committed the sexual assault during the commission of a robbery or kidnapping, or while armed with a weapon, or used physical force in committing the crime, all facts or circumstances raising the degree of the two crimes from second degree to first degree. N.J.S.A. 2C:15-1b; N.J.S.A. 2C:14-2a(3), (4) (6). Accordingly, we vacate the sentences imposed on those two counts and remand to the trial court for re-sentencing.

We next address the sentences imposed on Count Seventeen under Indictment No. 01-08-1116, first-degree kidnapping, and on the conviction under Accusation No. 04-02-0155, first-degree robbery. The trial court sentenced defendant to a twenty-year term of imprisonment on the kidnapping conviction and to a fifteen-year term of imprisonment on the first-degree robbery conviction. Neither sentence violates the principle of Natale II, kidnapping having an ordinary sentencing range of between fifteen and thirty years, N.J.S.A. 2C:13-1c(1), and a then-presumptive term of twenty years, N.J.S.A. 2C:44-1f(1)(a); and first-degree robbery having an ordinary sentencing range between ten and twenty years, N.J.S.A. 2C:43-6a, and a then-presumptive term of fifteen years, N.J.S.A. 2C:44-1f(1). However, for the same reasons previously expressed, we vacate the sentences imposed on these two convictions also, and remand for re-sentencing. The trial court did not express its reasons on the record for finding aggravating sentencing factors (6) and (9); nor did the court expressly state why it found aggravating sentencing factors (1) and (2), that is, whether it found those two aggravating factors for reasons other than the elements of the offenses which raised the offenses from second degree to first degree.

We affirm the convictions; vacate the sentences on all counts; and remand for re-sentencing.


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