August 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CLAUDE WILLIAMS, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-03-0210.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 20, 2010
Before Judges Skillman and Gilroy.
In March 2004, a Grand Jury charged defendant Claude Williams, Jr., with third-degree possession of a controlled dangerous substance (CDS) (heroin and/or cocaine), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b (count two); third-degree possession of a CDS with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree possession of a CDS with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four). The case was tried to a jury on August 5 and 6, 2003. At the conclusion, the court granted a judgment of acquittal on count three, and the jury found defendant guilty on the remaining counts.
On September 12, 2003, the court granted the State's motion to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3a. After finding aggravating sentencing factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating sentencing factors, N.J.S.A. 2C:44-1b, the court sentenced defendant on count four to an extended term of imprisonment of sixteen years with a seven-year period of parole ineligibility. The court merged the convictions on counts one and two with count four, and ordered defendant to pay all appropriate fines and penalties. Lastly, the court suspended defendant's driving privileges for one year.
On appeal, we affirmed the convictions, but vacated the sentence and remanded to the trial court to re-sentence defendant pursuant to State v. Natale, 184 N.J. 458 (2005). State v. Williams, No. A-3212-03 (App. Div. December 1, 2005). Defendant filed a petition for certification to the Supreme Court.
On January 6, 2006, while defendant's petition was pending, the trial court re-sentenced defendant as it had previously. On August 7, 2006, the Supreme Court granted defendant's petition for certification and summarily remanded the matter to the trial court for re-sentencing in light of the Court's then recent decision in State v. Pierce, 188 N.J. 155 (2006). State v. Williams, 188 N.J. 269 (2006). On October 20, 2006, the trial court re-sentenced defendant pursuant to the Court's remand, and again imposed the same sentence. Defendant appeals.
On appeal, defendant argues:
UNDER THE STATE AND FEDERAL CONSTITUTIONS, WILLIAMS IS ENTITLED TO HAVE THE JURY, RATHER THAN THE JUDGE, DETERMINE WHETHER HE HAD THE REQUISITE PRIOR CONVICTIONS TO QUALIFY FOR A DISCRETIONARY EXTENDED TERM UNDER N.J.S.A. 2C:44-3(a). (Partially Raised Below).
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING WILLIAMS TO A 16-YEAR TERM WITH SEVEN YEARS OF PAROLE INELIGIBILITY, AND ALSO IGNORED A MITIGATING FACTOR CLEARLY IN THE RECORD.
We have considered defendant's arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.
Defendant argues that he was improperly sentenced to an extended term pursuant to N.J.S.A. 2C:44-3a. Defendant challenges the constitutionality of the sentencing scheme under that statute, contending that judicial factfinding of his prior convictions, rendering him eligible for an extended-term sentence, violates his Federal and State constitutional rights to a trial by jury. This question was put to rest in Pierce when the Court held that the persistent offender statute was constitutionally sound. 188 N.J. at 163 (finding "no Sixth Amendment violation in the sentencing court's consideration of objective facts about defendant's prior convictions... in order to determine whether he qualifies as a 'persistent offender.'") (footnote omitted). Defendant acknowledges the Court's holding in Pierce but asks us to depart from the Court's decision. We have no authority to disregard a decision of our Supreme Court.
Defendant argues next that his sentence is excessive, contending that the trial court failed to consider his military service as a mitigating factor before imposing sentence. Not so.
An appellate court reviews a trial court's sentencing decision under an abuse of discretion standard. Id. at 166 n. 4. We "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990). However, an appellate court may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).
Here, on remand from the Supreme Court, the trial court sentenced defendant to an extended term of sixteen years of imprisonment with a seven-year period of parole ineligibility. When a defendant is sentenced as a persistent offender for a second-degree crime, the range of sentence available for imposition starts at the minimum of the ordinary-term range (five years) and ends at the maximum of the extended-term range (twenty years). Pierce, supra, 188 N.J. at 169; N.J.S.A. 2C:43-6a; N.J.S.A. 2C:43-7a(3). In addition, in imposing an extended-term sentence, the court has discretion to "fix a minimum term [of parole ineligibility] not to exceed one-half of the [overall] term." N.J.S.A. 2C:43-7b. Accordingly, the sentence imposed is within the allowable discretionary range for a persistent offender convicted of a second-degree crime.
In imposing that sentence, the court weighed the applicable aggravating and mitigating factors as required by statute. The trial court did not initially consider defendant's military service as a mitigating factor; however, when that fact was brought to the court's attention, the court did acknowledge it as a mitigating factor. "[A]bout his service to the country, if I didn't say it, certainly as a factor I would consider [the military service] in terms of mitigating." Nevertheless, the court concluded that defendant's military service would not affect its final determination "because of the substantial criminal record that [defendant] has. So that the aggravating factors still substantially outweigh the mitigating."
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