March 26, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES S. THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-01-0161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 27, 2010
Before Judges Cuff and Waugh.
This matter commenced on November 9, 2001, when a seventy- five year old woman was accosted by a man who had crouched in front of her car awaiting her return from the dry cleaners.
When she returned to her car, the man sprang forward, grabbed her left wrist, twisted and pulled her arm, and ran away with her pocketbook containing $750. State v. Thomas, 187 N.J. 119, 124 (2006) (Thomas I).
The man jumped into the passenger seat of an awaiting car driven by defendant Charles Thomas. Ibid. The car sped away and a chase ensued. Ibid. During the chase, defendant struck several vehicles, including one as he drove through a red light.
Id. at 214-25. Eventually, defendant and his passenger abandoned the car and fled on foot. Id. at 125. Defendant was caught and charged in a nine-count indictment. Ibid.
A jury found defendant guilty of six counts of the nine- count indictment. Id. at 127. After merging several counts, defendant received an aggregate term of twenty-eight years in prison with thirteen-and-one-half years of parole ineligibility.
Ibid. This aggregate sentence was composed of a persistent offender extended term of eighteen years for second degree robbery, subject to a No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole ineligibility term, and a consecutive ten-year term with a five-year period of parole ineligibility for second degree eluding. State v. Thomas, 195 N.J. 431, 433 (2008) (Thomas II).
The appellate history of the case has been protracted. In an opinion dated July 26, 2005, this court held that hindering apprehension should have been charged as a lesser-included offense of second degree robbery. Therefore, we reversed the robbery conviction and remanded for a new trial on that charge.
State v. Thomas, No. A-6113-02 (App. Div. July 26, 2005). The Supreme Court reversed and remanded for consideration of defendant's sentencing arguments. Thomas I, supra, 187 N.J. at 138. The trial judge resentenced defendant to an extended term of sixteen years imprisonment subject to a NERA parole ineligibility term on the robbery charge and a concurrent ten- year term of imprisonment on the eluding charge.
Defendant appealed and in an unreported decision, this court vacated the sentence, exercised our original jurisdiction and imposed a sixteen-year extended term on the eluding charge and a concurrent eight-year term subject to a NERA parole ineligibility term on the robbery charge. State v. Thomas, A- 6113-02 (App. Div. July 20, 2007). The Supreme Court held that this court should not have exercised its original jurisdiction and reversed the sentence crafted by this court. Thomas II, supra, 195 N.J. at 437. In doing so, however, the Court acknowledged that the sentencing judge had disregarded the recommendation of the prosecutor as to which count he sought an extended term to apply and held that the judge must explain why he rejected the recommendation of the prosecutor. Id. at 436- 37. Therefore, the Court ordered the sentencing judge to provide "an explanation of why he declined to accept the prosecutor's application to apply the extended term to the eluding count." Id. at 437.
On September 19, 2008, the judge provided his reasons. Finding that he was not required to resentence defendant, but only to provide an explanation for his decision to assign an extended term to the robbery conviction rather than the extended term conviction, he stated:
I specifically chose not to follow that recommendation and instead imposed it on the robbery count. I did that with full knowledge that the robbery count would be pursuant to NERA, and that he would be required to serve 85 percent of that sentence.
The eluding -- the eluding count would not be pursuant to NERA, I knew that, too, and would not be at 85 percent. It was my specific purpose at the time I sentenced him to impose an extended on the NERA count of robbery. It was not done inadvertently. It was not done by accident.
Now the defendant if you go back to the crime and his colleague purposely targeted an elderly woman and committed a robbery on that woman by -- during which the lady in my view was traumatized. Now did she require hospitalization, no. But I had that woman in this room and I saw that woman's fear and it was still manifested when I tried this case. That crime towards that old -- not old -- elderly lady placed her in fear and fright which was still present at the time of the trial. I saw that. I was the [t]rial [j]udge.
I mean part of the problem we all have is that as time goes beyond the trial, the actual events of the trial become cold, they become stultified. They go on a piece of paper, we don't see the person, you don't [know] what did he say other than the words. And people they speak beyond their words. You can see them and their demeanor.
I saw her at the trial and at her testimony and I saw in her eyes the fear still present when I tried that case. And there's no doubt in my mind that this man and his accomplice caused her irreparable trauma. It need not have been actual trauma to her body, physical trauma, you know, scarring and -- and broken bones, but they caused her a lot of injury to her, emotional injury.
Now I know that the defendant's colleague was the one who actually physically did the robbery but he was aider and abettor. He was the look out guy. He was the guy in charge of the car. And though -- and therefore, he's as responsible as the man who did the act for that particular crime.
The robbery was the controlling crime, but the criminal activity of the defendant did not stop there because he was the man who then drove the get away vehicle and went away in a very dangerous eluding. Counsel, you're right. I did classify that at the time of trial as one of the worst eludings I've ever had a course to hear testimony about and that was true.
Now this man is a man who is -- had issues before him in his record. And that is to say he had -- been charged with a robbery in 1997, and he took a plea to that to an aggravated assault in the third degree. The -- that crime showed, in my view, when I sentenced him that he was a violent man. The same violence that came out again in the crime we're talking about where he participated in a robbery of an older -- from an older lady, and did a very bad eluding.
He was arrested also in '94 for theft of -- from the person and he also at the time of the sentencing he had two 1,000-foot convictions that he had in 1998.
He was clearly a persistent offender then by statute and an extended term was and is appropriate in this case. The nature of the violence towards this victim committed by the defendant and his accomplice show in my view then and show in my view now the utter disregard that he has for the public safety.
And in my view clearly demonstrates an acute need for incarcerating him for a significant period of time. That's why I gave him the extended term on the robbery. I knew it was 85 percent. I knew by doing that he would be in jail for longer than if I had done it on the eluding.
I don't think I'm bound at all by the state's suggestion to me that I put it on the other count, a suggestion given to me by a lawyer who did not try the case initially. I knew full well the consequences of the real time when I imposed this sentence upon him.
I gave weight to the state's suggestion that the -- that it be put on the eluding, and for the reasons I have set forth in this particular statement on the record, I did not choose to do so for the reasons set forth in my view of the danger to the lady, the injuries she sustained which was, indeed, emotional and traumatic to me still at the time we tried it which was about a year after the event. I believe I had the discretion to do so, and I properly I believe executed my discretion and the need to protect the public by incarcerating this gentlem[a]n for a crime that was really a nasty crime committed on a defenseless person.
On appeal, defendant raises the following arguments:
THE JUDGE ERRED IN FAILING TO CONDUCT A RESENTENCING HEARING FOLLOWING THE SUPREME COURT REMAND FOR SUCH A HEARING.
THE JUDGE'S STATEMENT OF REASONS FAILED TO JUSTIFY IMPOSING THE EXTENDED TERM ON THE ROBBERY CONVICTION IN A CASE WHERE THE PROSECUTOR MOVED FOR AN EXTENDED TERM ON THE ELUDING CONVICTION, AND THE JUDGE ERRED IN FAILING TO CONSIDER WHAT DEGREE OF DEFERENCE WAS OWED TO THE PROSECUTOR'S DECISION THAT THE ELUDING WAS THE MORE SEVERE OFFENSE.
A. The Prosecutor's Decision to Have the Extended Term Imposed on the Eluding Conviction was Entitled to Deference.
B. Judge Triarsi's Stated Reasons Failed to Justify Overruling the Prosecutor's Decision to Impose any Extended-Term Sentence on the Eluding.
IN LIGHT OF STATE V. COOPER, THE PAROLE DISQUALIFIER ON THE AGGREGATE SENTENCE MAY NOT EXCEED THE 13.5 YEARS IMPOSED ON THE ORIGINAL SENTENCE.
IF THE COURT CHOOSES TO EXERCISE ITS ORIGINAL JURISDICTION, IT SHOULD IMPOSE AN EXTENDED-TERM SENTENCE ON THE ELUDING OFFENSE. BUT IF THE COURT CHOOSES TO IMPOSE AN EXTENDED TERM ON THE ROBBERY OFFENSE, THAT SENTENCE SHOULD NOT EXCEED THE MIDPOINT OF THE PIERCE SENTENCING RANGE BECAUSE THE AGGRAVATING FACTORS ON THE ROBBERY DO NOT SUBSTANTIALLY OUTWEIGH THE APPLICABLE MITIGATING FACTORS.
A. As this Court Previously Determined, the Extended Term Should be Imposed on the Eluding Conviction.
B. If the Court Chooses to Impose an Extended Term on the Robbery, the Base Sentence Should Not Exceed 12.5 Years.
On appeal, defendant argues that the judge had been directed to resentence defendant, that the reasons for imposing an extended term on the robbery conviction did not demonstrate the level of deference that should be afforded the prosecutor's recommendation, and that the sentence imposed in 2006 following the Supreme Court's initial decision violates State v. Cooper.*fn1
Defendant urges us, once again, to exercise our original jurisdiction.
In three opinions within the last eighteen months, the Court has discussed the scope of appellate review of sentences imposed by trial judges. The Court addressed when this court should exercise its original jurisdiction, when this court should remand for specific findings, and if this court may disturb a harsh sentence that conforms to the law and follows prescribed methodology. Given the relief requested, exercise of our original jurisdiction to the end of a modification of the term imposed by the trial judge, and the protracted appellate history of this matter, we pause to review these cases.
In State v. Cassady, 198 N.J. 165 (2009), the Court reviewed the principles governing appellate review of sentences.
In the course of this review, the Court reiterated that our review must be "'vigorous and close'" without substituting our judgment for that of the trial judge. Id. at 180 (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). Thus, when a trial judge's findings of fact in support of an aggravating or mitigating factor is supported by substantial evidence in the record, the sentence must be affirmed, even in the face of "perceived harshness." Id. at 180-81. To do otherwise, the desired goal of uniformity in sentencing is jeopardized. Id. at 179. Therefore, when a trial judge faithfully applies the aggravating and mitigating factors in the selection of a base term and any parole ineligibility term, and faithfully applies the Yarbough*fn2 factors for consecutive terms and the factors governing discretionary and extended terms, this court should not disturb the sentence, unless it "shocks judicial conscience." Id. at 183-84.
In State v. Bieniek, 200 N.J. 601 (2010), the Court admonished this court for remanding the case to the sentencing judge to reconsider the imposed sentence. The defendant had pled guilty to first degree aggravated manslaughter, second degree aggravated assault and driving while intoxicated. Id. at 605. The judge sentenced the defendant to an eighteen-year term of imprisonment subject to NERA consistent with the plea agreement. Id. at 606. In addition to reviewing the standard of appellate review of sentences, the Court stated that the sentencing judge should explain the reasons for his findings regarding the aggravating and mitigating factors. Id. at 608. It emphasized that a remand is required only "when an appellate court determines that the trial court has found aggravating and mitigating factors unsupported by the record...." Ibid.
When, however, a reviewing court "can readily deduce" from the transcript the reasons for citing or omitting certain factors urged by the State and defendant, our function is complete. Id. at 609-11.
Finally, in Thomas II, supra, 195 N.J. at 437, the Court directed that this court should exercise its original jurisdiction only when the exercise of discretion by a sentencing judge is "clearly mistaken." Moreover, if we should so find, a remand "'is strongly to be preferred.'" Ibid. (quoting State v. Kromphold, 162 N.J. 345, 355 (2000)).
With these principles in mind, we cannot subscribe to the argument that we should reject the reasons expressed by Judge Triarsi for imposing the extended term on the robbery count rather than the eluding count, and exercise our original jurisdiction to reassign the extended term to the eluding count.
As requested by the prosecutor, the Court directed Judge Triarsi to provide "an explanation of why he declined to accept the prosecutor's application to apply the extended term to the eluding count." Id. at 437. On September 19, 2008, he did so.
At this time, Judge Triarsi has complied with the mandate issued by the Supreme Court. He has explained why he did not follow the prosecutor's recommendation. We cannot find that this exercise of discretion is clearly mistaken or the cited factors are not supported by the record. We are, therefore, constrained to affirm.*fn3