May 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KYLE RANSOME, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 99-02-0114.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 10, 2009
Before Judges Winkelstein and Chambers.
In this post-conviction relief application, defendant Kyle Ransome challenges his sentence. For the reasons set forth below, we affirm.
Defendant was convicted by a jury of aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser included offense of a first-degree murder charge; possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The charges arose out of the death of Richard Nichols who was killed on January 24, 1998, having been shot in his head and chest. On June 22, 2001, defendant received an aggregate sentence of twenty-five years imprisonment, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the trial court imposed the requisite assessments and fees.
The conviction and sentence were affirmed. State v. Ransome, No. A-6720-00 (App. Div. June 21, 2004). The Supreme Court denied certification on September 27, 2004. State v. Ransome, 181 N.J. 549 (2004). Thereafter, defendant filed a petition for post-conviction relief. The trial court denied a portion of the petition on the record on August 6, 2007, and denied the balance of the petition in a letter opinion dated August 10, 2007.
In this appeal, defense counsel contends that defendant must be remanded for resentencing stating:
DEFENDANT'S TWENTY-FIVE YEAR PRISON TERM WITH A MANDATORY MINIMUM EIGHTY-FIVE PERCENT PAROLE INELIGIBILITY FOR AGGRAVATED MANSLAUGHTER MUST BE VACATED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING, BECAUSE THE TERM EXCEEDED THE TWENTY-YEAR PRESUMPTIVE TERM BASED ON A JUDICIAL FINDING OF AGGRAVATING FACTORS "OTHER THAN A PRIOR CONVICTION," THEREBY VIOLATING DEFENDANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
The nub of defense counsel's argument is that defendant was sentenced under the statutory presumptive sentencing scheme, contrary to his constitutional rights. In State v. Natale, 184 N.J. 458, 484 (2005), the Court found that the presumptive sentencing scheme set forth in the statute, N.J.S.A. 2C:44-1(f)(1), was incompatible with the holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), and the Sixth Amendment right to trial by jury. However, the Natale Court provided only pipeline retroactivity to its decision. State v. Natale, supra, 184 N.J. at 494. As a result, the Natale decision applies only to those defendants who raised the Blakely issue at trial or on direct appeal and whose cases were on direct appeal on the date of the Natale decision, namely, August 2, 2005. Ibid. Since defendant's direct appeal came to its final conclusion on September 27, 2004, when the Supreme Court denied certification, almost a year before the Natale decision, his case was not in the Natale pipeline. Accordingly, this argument on appeal must fail.
In his pro se brief, defendant raises the following issue:
THE TRIAL COURT'S FAILURE TO CONDUCT A PRESENTENCE NERA [HEARING] AS MANDATED BY N.J.S.A. 2C:43-7.2(e) PRIOR TO SENTENCING [DEFENDANT] TO NERA ENHANCEMENTS WITHOUT A JURY FINDING TO DETERMINE PREDICATE FACTORS FOR  NERA ENHANCEMENTS VIOLATES DEFENDANT'S [CONSTITUTIONAL] RIGHTS AND DUE PROCESS.
This argument challenges defendant's sentence under NERA.
At the times defendant committed his offense and was sentenced, NERA applied to a defendant who had committed a "violent crime."*fn1
The statute defined a "violent crime" as:
[A]ny crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S.2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.
[N.J.S.A. 2C:43-7.2(a) (1997), amended by N.J.S.A. 2C:43-7.2(d) (2001).]
The Court in State v. Johnson, 166 N.J. 523, 543 (2001), held that the question of whether the defendant has committed a "violent crime" under NERA must "be submitted to a jury and found beyond a reasonable doubt." This holding in Johnson was decided on February 28, 2001, before defendant's trial began, and hence applies to him. See id. at 547. Defendant contends that he was entitled to a hearing after his conviction for a jury to determine if he was subject to enhanced sentencing under NERA.
After defendant's conviction, an extensive discussion was held between the trial judge and counsel on the record regarding the application of Johnson to defendant's case, and whether a separate question should have been submitted to the jury on the NERA factor. The trial court concluded that a special NERA interrogatory did not have to be submitted to the jury because the NERA factor, namely that a death occurred during the commission of the crime, was an element of the crime of aggravated manslaughter.
The trial judge was correct in this analysis. The jury's finding that defendant committed aggravated manslaughter encompasses the requisite findings to also subject him to sentencing under NERA. As noted above, at the time defendant committed this offense, NERA applied to a defendant who committed "any crime in which the actor causes death." N.J.S.A. 2C:43-7.2(d) (1997), amended by N.J.S.A. 2C:43-7.2(d) (2001).
In order to convict defendant of aggravated manslaughter, the jury must have found that defendant caused the death of Nichols. See N.J.S.A. 2C:11-4(a). Hence, NERA was properly applied.
We note that in Johnson, the Court applied similar reasoning. There the defendant had been convicted of first-degree robbery and possession of a weapon with intent to use it against another person. State v. Johnson, supra, 166 N.J. at 528. At that time, NERA also applied to a defendant who committed a crime in which he "uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:43-7.2(d) (1997), amended by N.J.S.A. 2C:43-7.2(d) (2001). Although a specific NERA question had not been separately submitted to the jury, the Court found that in light of the evidence adduced at trial and the elements of the offense of first degree robbery, "the only conceivable conclusion" the jury could have reached was that the defendant threatened the victim with his BB gun when he robbed her. State v. Johnson, supra, 166 N.J. at 546. As a result, the NERA sentence was upheld. Ibid.
Similarly, here even without a separate NERA interrogatory, we know that the jury found defendant to have caused the death of another in the commission of a crime because it convicted him of aggravated manslaughter. Indeed, under the Johnson rationale, defendant also satisfied the NERA factor that he used a deadly weapon, since defendant was found by the jury to have killed Nichols who died of gunshot wounds, and defendant was also convicted of the two weapons offenses noted above. Hence NERA was properly applied to defendant's sentence.