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State v. Hilkevich

March 12, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN S. HILKEVICH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 99-09-0470.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 18, 2009

Before Judges Axelrad and Sapp-Peterson.

Defendant John Hilkevich appeals from the July 18, 2008 judgment re-sentencing him to an aggregate fifteen-year sentence with a five-year period of parole ineligibility arising out of defendant's conviction for two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2)(b), of victims A.C. and M.F. We affirm.

The sentences arose out of defendant's second trial during which he was retried on ten counts of what had originally been a trial on sixteen counts of various sexual offenses as well as charges of endangering the welfare of a child. On appeal, in an unpublished opinion, we reversed the conviction and remanded for a new trial. State v. Hilkevich, No. A-3632-00T3 (App. Div. Mar. 5, 2003).

Defendant was retried in 2006. Because one of the alleged victims refused to testify, the counts pertaining to that victim were dismissed and defendant was retried on eight counts of sexual offenses and two counts of endangering the welfare of a child. The jury convicted defendant on all counts. At sentencing, defendant received an aggregate thirty-year custodial sentence with a five-year period of parole ineligibility. On appeal, we affirmed defendant's conviction and the sentences imposed upon defendant for endangering the welfare of a child, but vacated the sentences imposed for the two aggravated sexual assaults. We stated:

[T]he court did not state reasons justifying the conclusion that these aggravating factors substantially outweighed the mitigating factor that defendant had no prior criminal record. The fact that a sentencing court identifies more aggravating than mitigating sentencing factors does not justify the conclusion that the aggravating factors outweigh or substantially outweigh mitigating factors. See State v. Kruse, 105 N.J. 354, 359-60 (1987). The Code requires a qualitative, rather than a quantitative, analysis of applicable aggravating and mitigating factors. See id. at 363. The trial court failed to undertake this required analysis. It simply stated in conclusionary language that "the aggravating factors substantially outweigh the mitigating factors[.]" Therefore, the case must be remanded to the trial court for reconsideration of defendant's sentences for the aggravated sexual assaults.

[Hilkevich, supra, slip op. at 68-69.]

The court re-sentenced defendant on July 11, 2008. During the sentencing hearing, the prosecutor spoke first and represented to the court that he believed the State was constrained by the record, but advised the court that both victims, A.C. and M.F., were present and prepared to speak if necessary. When defense counsel spoke, he presented five witnesses to speak on defendant's behalf: his parents, his sister, a friend, and a neighbor of his parents. None of these individuals spoke on behalf of defendant at his prior sentencing hearing. Additionally, defendant, who did not speak or present a statement at his prior sentencing, submitted a written statement. The prosecutor did not raise any objection to these witnesses.

After the witnesses addressed the court and defendant's written statement was read into the record, the prosecutor reiterated his belief that the State was constrained by the prior record but nonetheless requested the opportunity to present the two victims in view of the witnesses presented on behalf of defendant. The court, with no objection from the defense, permitted the victims to speak. The court sentenced defendant anew to an aggregate thirty-year sentence with a five- year period of parole ineligibility, finding that the aggravating factors qualitatively outweighed the mitigating factor.

On appeal, defendant raises the ...


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