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State v. Hilkevich

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 On appeal, in an unpublished opinion, we reversed the conviction and remanded for a new trial.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 following arguments:

POINT I

THE COURT VIOLATED THE RULES OF COURT AND THE DIRECTIVE OF THE APPELLATE DIVISION AND DEPRIVED DEFENDANT OF A FAIR AND LEGAL HEARING.

POINT II DEFENDANT'S SENTENCE IS MANIFESTLY INAPPROPRIATE.

POINT III THE STATEMENTS OF A.C. AND M.F. ARE TEXTUALLY AND MATERIALLY ERRONEOUS AND CANNOT BE USED IN SENTENCE DETERMINATION.

POINT IV THE PROOF OF TAINTED EDITS OF RE-SENTENCING TRANSCRIPT CALLS INTO QUESTION THE INTEGRITY OF THE ENTIRE TRANSCRIPT RECORD AND DENIES DEFENDANT'S ABILITY AND RIGHT TO EFFECTIVELY ENGAGE THE LEGAL PROCESS.

POINT V DEFENDANT'S RE-SENTENCING WAS SIGNIFICANTLY HARMED BY INEFFECTIVE REPRESENTATION BY COUNSEL.

POINT VI THE DISMISSAL OF M.F.'S FELONY CHARGES MENTIONED DURING SENTENCING IMPACTS THE COURT'S FINDINGS BUT WAS IGNORED AND THE COURT'S RECORDS DELIBERATELY MADE THE MENTION INCOMPREHENSIBLE.

POINT VII THE COURT'S ERRORS ARE NOT ONLY INTENSIFIED WHEN CUMULATIVELY MERGED BUT INTERTWINED BEYOND SEPARATION.

We have considered defendant's arguments in light of the record and the applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written appeal and we affirm substantially for the reasons set forth in Judge LeBon's well-reasoned oral opinion of July 11, 2008. R. 2:11-3(e)(2). We add the following brief comments related solely to the expansion of the record with a victim impact statement from A.C., who gave no statement at the earlier sentencing.

In State v. Towey, we stated that where "resentencing has been ordered, all current information relevant to an appropriate appraisal of the factors should be considered." 244 N.J. Super. 582, 593-94, certif. denied, 122 N.J. 159 (1990) (citing State v. Jarbath, 114 N.J. 394, 409-11 (1989)). We noted, however, that where the issue on remand for re-sentencing is whether the sentence imposed comports with accepted guidelines, a sentencing court may only consider the evidence before the sentencing court at the time of the original sentencing. Towey, supra, 244 N.J. Super. at 594 n.2.

It was unclear to the court and counsel whether we intended that defendant be sentenced anew or whether the court should simply reconsider whether it appropriately weighed the aggravating and mitigating factors in arriving at the sentence ultimately imposed. Because Judge LeBon's statement of reasons, as it related to the aggravating factors, primarily focused upon the trial record rather than A.C.'s victim impact statement, we find no clear abuse of discretion in her consideration of A.C.'s remarks, particularly in light of her consideration of allocutions from defendant's family members and friends, none of whom addressed the court at the prior sentencing. See State v. Velazquez, 54 N.J. 493, 495 (1969) (Jacobs, J., concurring) (cautioning that "it is only in the exceptional [sentencing] case" that a judge's use of discretion should be reversed).

Judge LeBon specifically addressed what factors from the trial record she considered when she imposed the original sentence: [T]he information that was developed at trial is that Mr. Hilkevich had a different relationship with A.C. and his family. He became the youth advocate for A.C.'s family. He was paid to take this dysfunctional family under his wing. And he testified at trial that that's what he did, that he advocated for A.C. and the family. Mr. Hilkevich had nothing nice to say about this family other than how he helped A.C.

Mr. Hilkevich clearly knew when he testified here that A.C. came from a dysfunctional family. He said A.C. himself was dysfunctional and said that he recommended to the Division of Youth and Family Services that A.C. be institutionalized. That's how bad he viewed A.C. to be.

He wanted to advocate for A.C. with regard to his academic situation, helping him [with] school with regard to his social skills, with regard to his relationship . . . skills and he did that through his - -first through his position as the youth advocate and then - - my notes are not as clear as they could be, but apparently he either became a counselor or got a counseling license or the relationship with the Division changed or something happened and he became a counselor.

. . . [B]ut there certainly was testimony that the defendant knew or reasonably should have known that A.C. was vulnerable. He knew or at least it was his opinion and his belief that A.C. was in such bad shape he should be institutionalized . . . .

But with regard to this aggravating factor [N.J.S.A. 2C:44-1(a)(2)] it is clear that the defendant knew or reasonably should have known what A.C.'s situation was.

Even though we previously noted that A.C. did not testify at trial about the effect of defendant's sexual assault on him or make an oral or written statement at the prior trial, it is clear from defendant's testimony at trial that he knew A.C. came from a dysfunctional family, was particularly vulnerable, and would look up to someone older and in a counseling position such as defendant, which fits exactly within the parameters of N.J.S.A. 2C:44-1(a)(2). Therefore, what weighed heavily in Judge LeBon's analysis at the time she imposed defendant's sentence was A.C.'s vulnerability, as established from the trial record and defendant's own testimony, not A.C.'s statement to the court at defendant's re-sentencing.

Additionally, the court rejected the argument that defendant has been deterred from engaging in further criminal behavior, noting:

This is a defendant who was substantially older than the victim, who was paid to advocate for him. He was paid to counsel him, who after engaging in wholly inappropriate sexual conduct with A.C.[,] went [on to] engage in wholly inappropriate sexual conduct with M.F. And, it can hardly be said that simply living a life in which you're not involved with the law outweighs the need to deter others and knowing the situation of the victim in this case.

We are satisfied that the court's consideration of the aggravating and mitigating factors at re-sentencing was well- stated and reflects a qualitatively thoughtful and detailed consideration of all appropriate factors primarily derived from the original record and we discern no basis for further intervention. Towey, supra, 244 N.J. at 593-95.

Affirmed.

20100312

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