June 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYLEWIS GEORGE HUGHES, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-06-0773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 25, 2009
Before Judges Cuff and Fisher.
A jury found defendant Raylewis George Hughes, Jr., guilty of first degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3a(1) (Count One); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Three); third degree possession of a weapon (scissors) for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Six); and fourth degree criminal mischief, N.J.S.A. 2C:17-3a(2) (Count Eight). These charges arise from an attack by defendant on the person with whom he stayed on occasion. At sentencing, after merging Counts Three, Four and Six with Count One, the judge imposed an extended term of forty years subject to the No Early Release Act (NERA)*fn1 85% parole disqualifier. On Count Eight, the judge imposed a consecutive term of eighteen months subject to a nine-month period of parole ineligibility. The appropriate fines and assessments were also imposed.
Ben Sattely is a fifty-seven year old handyman at the Jacob Ford Village in Morristown. In 2006, he had resided alone in Morristown for the past six years. He befriended defendant Hughes about six or seven years before and "never had any problems with [defendant]." Sometime during the evening hours of Friday, February 10, 2006, defendant came to Sattely's residence and spoke with Sattely apparently after having an argument with a girlfriend and needing a place to stay. At some point defendant left Sattely's residence and was told not to return if Sattely was sleeping. Prior to his departure, defendant was annoyed when Sattely refused to allow defendant to use his phone.
In fact, Sattely's mother spoke with her son about 10 p.m. that evening and heard her son address another person named Ray. Based upon the tone of her son's voice, Sattely's mother deduced that someone was being "pushy" towards her son and it seemed as if the other person wanted him to get off the phone.
Sattely went to sleep but he was awakened in the early morning hours of Saturday, February 11, 2006, by defendant's "racket." Sattely went downstairs, observed defendant at the door, and allowed him to enter. As Sattely sat down on the couch and lit a cigarette, defendant grabbed a pair of scissors and began stabbing Sattely throughout his body. Sattely was stunned by defendant's attack, but eventually disarmed him.
Defendant then grabbed what Sattely believed to be a hammer and struck the victim on the head with this object. The attack stopped only when Sattely played dead by holding his breath and lying still. When Sattely was sure defendant had left the house, he called 9-1-1 and reported the attack.
On admission to the hospital, a trauma physician discovered five lacerations in the victim's scalp totaling twelve centimeters (five inches) in length. One of these lacerations cut an artery. On his face, there were two cuts; one on the nose, the other on his left cheek. There were three lacerations on his chest and a three centimeter laceration on his left forearm. There was also a small laceration on his neck. Due to profuse bleeding, the victim's blood pressure plummeted and he required two units of blood and four liters of fluids to stabilize his blood pressure. Sattely spent approximately one month in the hospital and one month in rehabilitation.
Police responded to the scene. As Officer Sean O'Hare of the Morris Township Police Department headed to the area of Western Avenue, he observed and stopped defendant. The officer observed fresh blood on defendant's boots or shoes. Defendant appeared very agitated and tense. Although it was very cold, defendant was sweating profusely.
Detective Brendan Briscoe of the Morristown Police Department heard that a Morris Township officer had detained defendant and responded to that location. He, too, observed that defendant appeared "hot and sweaty" and noted what appeared to be blood on defendant's pants and boots. These items were ultimately seized as evidence. The State submitted forensic evidence at trial that established that the blood found on defendant's clothing and on scissors found at the victim's home belonged to the victim.
Briscoe placed defendant under arrest and started to place him in his vehicle. While this occurred, an ambulance passed and defendant became irate. He asked the detective where the ambulance was headed. Defendant asked if the ambulance was going to "Ben's house." Defendant was still agitated and "irate." Defendant was placed in the police vehicle with his hands cuffed behind his back. He laid down in the back seat of the patrol car and started to kick the rear window and protective metal grate of the vehicle.
After being subdued, defendant was transported to police headquarters. On arrival, Briscoe was able to confirm that defendant's boots and pants were splattered with blood. While defendant was being processed at the police station, he spontaneously inquired about Sattely's condition.
On appeal, defendant raises the following arguments:
THE TRIAL JUDGE ERRED BY ADMITTING THE CRIMINAL MISCHIEF CHARGE AND THE PROSECUTOR VIOLATED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY STATING THE CRIMINAL MISCHIEF CHARGE IMPLIED CONSCIOUSNESS OF GUILTY. (Not Raised Below).
THE TRIAL JUDGE ERRED BY FINDING DEFENDANT EXTENDED TERM ELIGIBLE. (Partially Raised Below).
A. The California conviction is the equivalent of a fourth degree offense and thus did not qualify as an extended term prerequisite.
B. With just two qualifying convictions, the trial judge erred in determining that an extended term was appropriate.
AGGRAVATING FACTOR 1 WAS IMPROPERLY FOUND AND THE DEFENDANT'S SENTENCE WAS CLEARLY EXCESSIVE NECESSITATING A REMAND.
Defendant was charged with several offenses related to the attack on Sattely and a single count of criminal mischief. The latter offense stems from defendant's post-arrest conduct in the police car. Defendant urges that the criminal mischief charge should have been severed and that the prosecutor should not have argued that defendant's post-arrest actions could be considered by the jury as evidence of his consciousness of guilt. Defendant did not raise this argument at trial. Therefore, we review this contention in accordance with the plain error standard. R. 2:10-2.
Rule 3:15-1(b) requires joinder of multiple offenses based on the same conduct or arising from the same episode. State v. Williams, 172 N.J. 361, 367-68 (2002). Properly joined charges may be severed when a defendant would be prejudiced by joinder.
R. 3:15-2; State v. Oliver, 133 N.J. 141, 150 (1993). There has been no showing of prejudice in this case. Rather, the criminal mischief charge is the final criminal act committed by defendant in the early morning hours of February 11, 2006. The act was committed close in time and place to the physical attack on Sattely.
Defendant also challenges the prosecutor's interpretation of defendant's actions in the police car. The prosecutor argued that the jury could consider defendant's behavior as consciousness of guilt.
Here, we must evaluate the prosecutor's summation according to the plain error standard. The failure to object to a remark in a summation generally suggests that the comment, when uttered, was considered unremarkable by defense counsel. State v. Echols, ___ N.J. ___, ___ (2009) (slip op. at 19). Moreover, if the consciousness of guilt argument could be considered error, it does not rise to the level of plain error.
Although it is debatable whether defendant's actions in the police car reflect his realization of the import and consequences of his earlier actions or reflect his state of mind at and immediately after this seemingly unprovoked attack, a new trial is not warranted. The evidence assembled by the State of defendant's guilt was overwhelming. He was placed at the victim's home by the victim and his mother, he was identified as the assailant by the victim, he was linked to the scene and to the implements used to assault the victim by DNA evidence, and he was found soon thereafter near the victim's home with clothing splattered in the victim's blood.
Defendant was sentenced to an extended term as a persistent offender. A California conviction was a critical element of the decision that defendant qualified as a persistent offender. We hold that the California conviction is not a qualifying prior conviction; therefore, defendant failed to meet the criteria for an extended term sentence.
A person may be sentenced to an extended term as a persistent offender, if he has committed at least two crimes on two separate occasions and is twenty-one years old or older at the time he commits the offense for which he is to be sentenced. N.J.S.A. 2C:44-3a. In addition, defendant must have been at least eighteen years of age when he committed the prior crimes and the latest offense must have been committed within ten years of the date of the offense for which defendant is sentenced. Ibid. Offenses committed in another jurisdiction may provide the basis for an extended term sentence. State v. Copeman, 197 N.J. Super. 261, 265 (App. Div. 1984). The foreign conviction, however, must be substantially equivalent to the offenses in this State that qualify for imposition of an extended term. State v. Simon, 161 N.J. 416, 459-60 (1999); State v. Hines, 109 N.J. Super. 298, 305-06 (App. Div.), certif. denied, 56 N.J. 248 (1970).
Here, defendant had two prior convictions. The first was an April 1996 conviction in New Jersey for third degree receiving stolen property for which defendant received a probationary term. The second is an October 1997 conviction in California for possession of methamphetamine. Although the maximum term of imprisonment is one year, California Health & Safety Code § 11377, defendant received a two-year term of probation.
The California conviction is equivalent for sentencing purposes to a fourth degree offense in this State. See N.J.S.A. 2C:43-6a(4) (term of imprisonment for fourth degree offense shall not exceed eighteen months). Fourth degree offenses are not qualifying convictions for extended term sentencing as a persistent offender. N.J.S.A. 2C:44-3a.
In the alternative, we also agree with defendant's argument that the nature of the prior convictions and the application of NERA to the attempted murder conviction support the conclusion that the imposition of an extended term was a mistaken exercise of the discretion of the sentencing judge. Admittedly, the imposition of an extended term of imprisonment for a persistent offender is a discretionary act. N.J.S.A. 2C:44-3a; State v. Pierce, 188 N.J. 155, 161 (2006). This discretion, however, is not without significant constraints. Pierce, supra, 188 N.J. at 163-67; State v. Dunbar, 108 N.J. 80, 95-96 (1987).
Moreover, since adoption of the persistent offender extended sentencing scheme, the Legislature has also adopted NERA which imposes a very substantial minimum mandatory term for many offenses, including attempted murder. N.J.S.A. 2C:43-7.2. The Court has repeatedly admonished judges to consider the real time consequences of their sentences, including the enhanced minimum mandatory terms required by NERA, in fashioning sentences. See State v. Pennington, 154 N.J. 344, 357 (1998) ("a sentencing court is required to consider parole consequences in sentencing"); State v. Maguire, 84 N.J. 508, 530 (1980) (the ultimate reality of a sentence is the period of incarceration before parole); see also State v. Mosley, 335 N.J. Super. 144, 157 (App. Div. 2000) ("real time is the realistic and practical measure of the punishment imposed"), certif. denied, 167 N.J. 633 (2001).
Here, the last qualifying offense occurred two months shy of the ten-year outer limit. Defendant's two prior convictions, assuming the California conviction is a qualifying conviction, were for non-violent offenses for which defendant received probationary terms. Stated differently, until the February 2006 physical attack on Sattely, defendant had no prior qualifying convictions of a violent nature. The first degree status of attempted murder, coupled with the NERA requirement that defendant serve 85% of any term imposed, yields a lengthy term of imprisonment. Accordingly, we hold that imposition of an extended term of imprisonment was a mistaken abuse of the judge's sentencing discretion.
On the other hand, we find no fault with the trial judge's finding aggravating factor number one, the heinous nature of the offense, applicable to this sentence. N.J.S.A. 2C:44-1a and 44-1b. Double counting must be avoided, State v. Jarbath, 114 N.J. 394, 404 (1989), but a sentencing judge may certainly consider an exceptionally violent attack, such as the unprovoked assault in this case, as an aggravating factor for purposes of imposition of sentence. State v. Noble, 398 N.J. Super. 574, 599 (App. Div.), certif. denied, 195 N.J. 522 (2008); State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992). Indeed, in Noble we observed that the elements of attempted murder do not include injury to the victim. Therefore, the sentencing judge properly found the extent of the injuries inflicted an aggravating factor. Noble, supra, 398 N.J. Super. at 599.
We affirm the verdict, as well as the finding that aggravating factor one is applicable for sentencing purposes in this case. We reverse the extended term and remand for re-sentencing consistent with the terms of this opinion.
Affirmed in part, reversed and remanded in part.