July 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMA SMITH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-03-0226.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 5, 2011 --
Before Judges Payne and Hayden.
Defendant, Jama Smith, was convicted in 2004 of nine counts of a twelve-count indictment. He was sentenced as follows: Count One (third-degree possession of a controlled dangerous substance (CDS)) and Count Two (third-degree possession with the intent to distribute) were merged into Count Three (third-degree possession of CDS with the intent to distribute it within 1000 feet of a school). Defendant was given an extended-term sentence on Count Three, pursuant to N.J.S.A. 2C:43-6f, of ten years with five years of parole ineligibility. On Count Seven, third-degree resisting arrest, he was given a concurrent five-year sentence. On Count Eight, second-degree possession of a weapon for an unlawful purpose, the judge stated at the sentencing hearing that he was imposing an extended-term sentence of twenty years with ten years of parole ineligibility, pursuant to N.J.S.A. 2C:43-6c and 2C:44-3d, consecutive to Count Three. However, the judgment of conviction (JOC) states that the sentence was concurrent to that count. On Count Nine, third-degree unlawful possession of a weapon, defendant was sentenced to a concurrent term of five years. On Count Ten, second-degree possession of a weapon while committing a CDS offense, defendant was sentenced to ten years in custody with a five-year period of parole ineligibility, consecutive to Count Three and concurrent to Counts Eight and Nine. On Count Eleven, fourth-degree possession of a defaced firearm, defendant was sentenced to eighteen months in custody consecutive to Count Three and concurrent to Counts Eight, Nine and Ten. And finally, on Count Twelve, possession of a weapon by a convicted felon, he was sentenced to ten years in custody with a five-year period of parole ineligibility consecutive to Counts Three, Eight, Nine and Ten. However, the JOC omitted the parole ineligibility period. It also incorrectly stated defendant's aggregate sentence as "40 - 15 years."
Defendant appealed, and we remanded for reconsideration of the entire sentence under State v. Natale, 184 N.J. 458 (2005) and for reconsideration of the consecutive sentence on Count Twelve. State v. Smith, No. A-28-05 (App. Div. October 17, 2007). The Supreme Court granted certification, limited to the charge of possession of a defaced firearm, and it affirmed the conviction. State v. Smith, 197 N.J. 325 (2009).
In the meantime, the resentencing that we had ordered took place on
October 3, 2008. Following argument, the judge stated that he
"impose[d] the same sentence that I imposed back on November 12th,
2004 for the same reason as stated on the record at that time."
However, he also stated in connection with Count Eight that he imposed
a sentence of "20 years in the custody of the Commissioner of the
Department of Corrections, minimum
period [of] parole ineligibility 10 years . . . . Sentence is to run
concurrent with Count Three of the indictment." The JOC reflected the
concurrent nature of the sentence on Count Eight. The judge also
omitted the mandatory five-year period of parole disqualification on
Count Twelve in his oral statement of defendant's sentence, and that
parole ineligibility period does not appear on the JOC.*fn1
The 2008 JOC, as had the 2004 JOC, listed the total custodial
term as "40 - 15 years."
In December 2008, defendant again appealed. While his appeal was pending, the Chair of the Parole Board sent a letter to the Presiding Judge for the Criminal Division in Passaic County stating:
The Judgment of Conviction (see attached) issued in this matter indicates that the aggregate sentence imposed is 40 years with 15 years parole ineligibility. Also, in a Superior Court - Appellate Division decision issued on October 17, 2007 the court noted the aggregate sentence to be 40 years with a 15 year parole ineligibility term.
Based on the language reflected on the Judgment of Conviction as to how the respective sentences are to be served in relation to each other, the State Parole Board staff is unable to confirm the aggregate sentence being 40 years with a 15 year parole ineligibility term. In the opinion of staff, the aggregate sentence is 30 years with a 10 year parole ineligibility term. This aggregate term is based on the sentences imposed on Counts #3, #10, and #12.
The Board sought direction from the sentencing judge as to the correct sentence.
An additional sentencing hearing was conducted on May 14, 2010 while this appeal remained pending. At that time, the State argued that, in 2004, a mistake had been made on the JOC with respect to Count Eight, which had been termed a concurrent sentence, when in fact the judge had ordered that it be consecutive to the sentence on Count Three. If that sentence were deemed consecutive, then a aggregate sentence of forty years with a twenty-year parole disqualifier would have been imposed. The mistake in the consecutive nature of the sentence on Count Eight and the aggregate sentence, contained in the 2004 JOC had been perpetuated thereafter. The judge agreed with the State's position and declared the lower sentence set forth on the 2004 and 2008 JOCs to have been the result of clerical error. Defendant thereupon amended his notice of appeal to reflect his objection to the 2010 sentence.
On appeal, defendant makes the following arguments through counsel:
THE SECOND-OFFENDER-WITH-A-FIREARM EXTENDED TERM, IMPOSED UNDERN.J.S.A. 2C:43-6c AND2C:44-3d, IS ILLEGAL BECAUSE DEFENDANT DOES NOT HAVE A QUALIFYING PRIOR CONVICTION.(Not RaisedBelow.)
THE INCREASE IN THE SENTENCE ON COUNT 8, FROM THE CONCURRENT TERM IMPOSED IN 2008 TO A CONSECUTIVE TERM IN 2010, VIOLATES DEFENDANT'S CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY ANDGUARANTEE OF DUE PROCESS, AND THE CONCURRENT TERM MUST BE REINSTATED.
ALTHOUGH THE CONTROLLING JUDGMENT OF CONVICTION, DATING FROM 2008, STATES THAT THE "TOTAL CUSTODIAL TERM [IS] 40-15 YEARS,"AS THE PAROLE BOARD CONCLUDED, THE TOTAL CUSTODIAL SENTENCE THE JUDGE ACTUALLY PRONOUNCED IS 30 YEARS WITH A TEN-YEAR PAROLE DISQUALIFIER; THUS, THE JUDGMENT MUST BE AMENDED TO REFLECT A TOTAL TERM OF 30 WITH TEN.
A SENTENCE GREATER THAT 30 YEARS, 10 YEARS WITHOUT PAROLE, IS EXCESSIVE.
Additionally, defendant raises two arguments in a pro se supplemental brief. He notes that the mandatory extended term sentence imposed on Count Eight, charging second-degree possession of a weapon for an unlawful offense, was predicated on a prior plea of guilty to the charge of attempted murder. However, he argues that, because he pled guilty only toattempted murder and not any weapons offenses the imposition of an extended term would require judicial factfinding, consisting of the fact that the attempted murder was committed with a weapon to which the Graves Act applies. Such factfinding, defendant argues, is precluded by State v. Franklin, 184 N.J. 516 (2005). Defendant argues additionally that the judge improperly found aggravating factor 2 (the gravity and seriousness of the harm inflicted on the victim), N.J.S.A.2C:44-1a(2), an argument that we address in footnote 3 of this opinion.
I.In his first argument, defendant contends that N.J.S.A. 2C:43-6c and 2C:44-3d, the Graves Act provisions under which he was sentenced to an extended term on Count Eight, are inapplicable because the prior crime upon which the extended term was based was "attempted" murder pursuant, to N.J.S.A. 2C:5-1 and 2C:11-3, by shooting the victim in the face, not murder of that person. He argues that attempted murder is not an enumerated Graves Act crime. We disagree.
N.J.S.A. 2C:43-6c provides for imposition of a Graves Act sentence on a person who has been convicted under 2C:39-4a, possession of a weapon for an unlawful purpose, "who, while in the course of committing or attempting to commit the crime . . .used or was in possession of a firearm." The statute additionally provides:
A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44-3d, shall be sentenced by the court to an extended term as authorized by 2C:43-7c, notwithstanding that extended terms are ordinarily discretionary with the court.
N.J.S.A. 2C:44-3d provides for imposition of an extended term if defendant is at least 18 years of age and has been previously convicted of any of the following crimes: 2C:11-3, 2C:11-4 . . . and he used or possessed a firearm, as defined in 2C:39-1f, in the course of committing or attempting to commit any of these crimes, including the immediate flight therefrom.
"'As a general rule of statutory construction, we look first to the language of the statute. If the statute is clear and unambiguous on its face and admits of only one interpretation, we need delve no deeper than the act's literal terms to divine the legislature's intent.'" State v. Thomas, 166 N.J. 560, 567 (2001) (quoting State v. Butler, 89 N.J. 220, 226 (1982)). Here, the statute required conviction pursuant to N.J.S.A. 2C:11-3, and declared its applicability if defendant "possessed a firearm . . . in the courts of . . . attempting tocommit" that crime. Thus, the statutory conditions were met. Were we to hold otherwise and require an explicit mention of N.J.S.A.2C:5-1, the effect would be to read the "attempting to commit" language out of the statute. "It is not proper statutory construction to reach a result which would render a provision completely meaningless." State v. Malik, 365 N.J. Super. 267, 278 (App. Div. 2003), certif. denied, 180 N.J 354 (2004); State v. Portuondo, 277 N.J. Super. 337, 343 (App. Div. 1994).
Moreover, as defense counsel has noted, we have previously noted that the extended term provisions of the Graves Act apply to attempted commission of the enumerated crimes. State v. Staten, 327 N.J. Super. 349, 354 (App. Div. 2000). There, after enumerating examples in which attempts to commit predicate offenses were specifically included within the statutory language, we stated: "These examples demonstrate that the Legislature has provided for the applicability of the statute to attempts when it intended to do so." Ibid.
As a final matter, we note that in State v. Livingston, 172 N.J. 209 (2002), the Supreme Court construed the "Three Strikes" law, N.J.S.A. 2C:43-7.1, to require that the prior sentences be imposed on different occasions, even if they were imposed for wholly different crimes, and thus the law was inapplicable tothe defendant, who had pled guilty to two indictments and was sentenced simultaneously on them. A statutory amendment has nullified that holding. However, what we find noteworthy in that case is that the defendant had been given extended term sentences pursuant to the Graves Act for carjacking and attempted murder. Although the State conceded the sentence for carjacking was not one of the enumerated offences to which the Graves Act applied, the defendant's extended Graves Act sentence for attempted murder was not questioned. Id. at 215-16. The Supreme Court affirmed that it, not a sentence pursuant to the Three Strikes law, was applicable. Id. at 225.
We reject defendant's argument that State v. Franklin, supra, 184 N.J. 516, precludes the imposition of an extended term sentence on him. While that precedent would be controlling if, as in Franklin, a jury had acquitted defendant of all gun-related offenses, id. at 524, here, in providing a sworn statement setting forth the factual basis for his plea, defendant admitted to utilizing a handgun to shoot the victim in the face. As a consequence, no judicial factfinding was required.
II.In his next argument, defendant concedes, as he must, that he was initially sentenced on Count Eight to a consecutive sentence. State v. Walker, 322 N.J. Super. 535, 556 (App. Div.), certif. denied, 162 N.J. 487 (1999); State v. Pohlabel, 40 N.J. Super. 415, 423 (App. Div. 1956) (both decisions holding that where there is a discrepancy between the judge's oral pronouncement of sentence and the JOC, the transcript controls). However, defendant contends that, at the 2008 resentencing hearing, the judge altered the term on Count Eight to require that it run concurrently, and that the amended JOC accurately reflected what the judge had ordered. Thus, he contends, the judge violated principles of double jeopardy when he increased the sentence in 2010 by once again running Count Eight consecutively to Count Three.
We do not agree with defendant's position. While he is correct that the judge did state that Count Eight was to run concurrently, he also stated that his "opinion does not change with regard to the sentence that I imposed" and "I am satisfied. . . that a term ofincarceration consistent with what was previously imposed should be imposed upon the defendant, and accordingly I impose the same sentence that I imposed back on November 12th, 2004 for the same reasons stated on the record at that time."
In the circumstances thus presented, the judge's intent - whether to impose a consecutive or concurrent term - was unclear. Ordinarily, a remand would be necessary to obtain clarification. State v. Murray, 338 N.J. Super. 80, 91 (App. Div.), certif. denied, 169 N.J. 608 (2001). In the present case, the Parole Board's inquiry occurred before defendant's appeal was heard, and as a result, the necessary clarification was given by the judge, who indicated that his intent, throughout, was to impose a consecutive term, that the sentence imposed in 2010 did not exceed any sentence previously imposed, and that the 2004 and 2008 JOCs contained clerical errors.*fn2
Thus, principles of double jeopardy, see State v. Matlack, 49 N.J.491, 501, cert. denied, 389 U.S. 1009, 88 S. Ct. 572, 19 L. Ed. 2d 606 (1967), which generally prohibit an increase in a sentence following the commencement of its execution, are not implicated here.
III.As a final matter, defendant challenges his sentence as excessive, arguing that any sentence greater than thirty years,with ten years without parole, should be thus characterized. We disagree. At sentencing, the trial judge found aggravating factors 3 (the risk of reoffense), 6 (defendant's prior record), and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6), and (9).*fn3
Our review of the sentence satisfies us that the aggravating factors cited by the judge were properly supported by substantial evidence in the record, State v. O'Donnell, 117 N.J. 210, 216 (1989), and that there were no applicable mitigating factors. We are also satisfied that the judge properly applied the factors set forth by the Court in State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), when determining to impose a consecutive sentence on defendant's conviction for possession of a firearm by a convicted felon, and that his other sentencing determinations conformed to the law. As a consequence, the sentence is affirmed. State v. Cassady, 198 N.J. 165, 180-84 (2009).