November 9, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DON A. SAMPLER, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-04-0329.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Payne and Simonelli.
Following the denial of his motion to suppress, defendant Don A. Sampler, Jr. entered an open guilty plea to second-degree conspiracy to possess with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:5-2, and first-degree possession of five ounces or more of cocaine, N.J.S.A. 2C:35-5a(1) and -5b(1). Defendant was sentenced to a thirteen-year term of imprisonment with five years of parole ineligibility and five years of post-release parole supervision. On appeal, defendant raises the following arguments:
THE EVIDENCE FOUND ON THE DEFENDANT'S PERSON SHOULD HAVE BEEN SUPPRESSED AS THE FRUIT OF THE WARRANTLESS SEARCH OF THE CAR.
IN LIGHT OF THE CIRCUMSTANCES OF THE CASE AND THE DEFENDANT'S CHARACTER, THE SENTENCE IMPOSED ON HIM WAS EXCESSIVE AND MUST BE REDUCED. IN ADDITION, THE DISPARITY BETWEEN DEFENDANT'S SENTENCE AND THAT OF HIS MORE CULPABLE CO-DEFENDANT REQUIRES A REDUCTION OF SENTENCE UNDER STATE v. ROACH.
A. THE SENTENCE WAS EXCESSIVE.
B. IN LIGHT OF THEIR SIGNIFICANT INDIVIDUAL DIFFERENCES, DEFENDANT'S SENTENCE IS UNFAIRLY DISPROPORTIONATE TO THAT WHICH THE DRUG KING-PIN RECEIVED.
We affirm defendant's conviction, and reverse his sentence and remand for re-sentencing.
The record reveals the following facts. In January 2006, the Somerset County Prosecutor's Office Organized Crime and Narcotics Task Force Unit (Task Force) began investigating crack and powder cocaine distribution by Dwayne Austin in Somerset and Union counties. As part of the investigation, the Task Force obtained a communication data warrant authorizing the wire and electronic interception and monitoring of all incoming and outgoing calls for two of Austin's cell phones. Task Force detectives also had made numerous controlled buys of cocaine from Austin.
During several intercepted phone calls between defendant and Austin on March 3, 2006, the detectives heard defendant make arrangements to meet with Austin and purchase four ounces of cocaine from him for $3200. They also heard defendant make arrangements to meet with Austin and purchase seven ounces for $5600 during several intercepted calls on March 16, 2006. Detectives conducted surveillance of Austin's home in Plainfield on both dates and saw defendant and Austin complete the drug transactions.
On the second date, the detectives saw defendant and a woman passenger, later identified as Tiffany Borowski, arrive at Austin's home and leave in a green 1999 Chevrolet Cavalier. New Jersey State Trooper Robert Haines, a Task Force member, followed defendant's car in an unmarked police vehicle to State Highway 22, then onto Interstate 80 and into Rockaway Township. Trooper Haines advised other State Troopers that there was an ongoing narcotics investigation out of Plainfield, there were narcotics in defendant's car, defendant might possibly be armed, and the troopers were to make a "directed stop"*fn1 of defendant's car. In the meantime, the Task Force was in the process of obtaining a search warrant for defendant's car and its occupants.
Troopers Amin Dinan and Zsolti Baka saw defendant's car speeding and improperly changing lanes on Interstate 80 westbound. The troopers followed the car for approximately one-half mile before activating their overhead lights and conducting a "directed stop." The troopers approached defendant's car following the stop, and Trooper Baka questioned Borowski, while Trooper Dinan questioned defendant. Defendant and Borowski gave the troopers conflicting stories about where they were coming from and going to. Borowski told Trooper Baka that she had dropped defendant off at a house in Plainfield to visit a sick friend. Defendant, who appeared "extremely nervous," told Trooper Dinan that he was coming from Plainfield where he visited a friend who was not sick, and was going home to New York.
Trooper Dinan asked defendant to exit the car. He then called for a drug-sniffing canine to the scene, who detected the presence of narcotics inside the car. The troopers entered the car and found marijuana and two cell phones. They arrested Borowski after she admitted ownership of the marijuana. The troopers did not arrest defendant but handcuffed him for the safety of all officers on the scene and placed him into a police vehicle while the investigation continued.
By this time, Judge Bartlett had issued a search warrant after making comprehensive findings based on extensive probable cause evidence presented by Detective Omar Belgrave. The warrant initially identified John Doe and Jane Doe as the car's occupants. Following the stop of defendant's car, Detective Belgrade advised the judge of the stop and gave her defendant's and Borowski's names and identifying information. He did not tell the judge that marijuana had been found in defendant's car. The judge added defendant's and Borowski's names to the search warrant.
After the troopers received notice that a warrant had been issued, they removed defendant from the police vehicle, searched him, and discovered approximately seven ounces of cocaine in a bag concealed in his groin area beneath his stomach. Trooper Dinan then administered Miranda*fn2 rights to defendant. The stop was recorded on two audio-videotapes, which were played at the hearing on defendant's motion to suppress.
Defendant was transported to the Somerville police barracks, where Trooper Haines read defendant his Miranda rights from a Miranda card. Defendant said he understood his rights, signed the Miranda card, waived his rights, and then wrote and signed the following statement: "Today I went to by cocaine in South Jersey. Didn't know for sure what I was going to do with it. Wanted to make a little cash to go back to Georgia." Defendant also said that he had purchased seven ounces of cocaine for $6000.
In his motion to suppress the evidence found in the search of his person, defendant challenged both the search warrant and the stop. Judge Marino denied the motion, finding that the stop was valid because the troopers saw defendant commit motor vehicle violations, and Task Force detectives saw defendant meet with Austin after arranging to purchase a large quantity of cocaine, which gave them probable cause to believe that defendant committed a crime and that the car contained contraband or other criminal evidence relating to that crime.
Alternatively, Judge Marino found that there was sufficient probable cause to issue the search warrant, Judge Bartlett properly issued it based on facts known to the Task Force prior to the stop, and the inevitable discovery doctrine applied because the warrant authorized the troopers to search defendant's car and its occupants and seize all evidence relating to CDS possession and/or distribution. The judge further found that once the warrant was issued, the troopers properly searched defendant.
Our review of a trial judge's factual determination is limited. State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing a motion to suppress evidence, we "'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Additionally, factual findings of the trial court are entitled to deference when they "'are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting Elders, supra, 192 N.J. at 244).
When we are satisfied that the findings of the trial court could reasonably have been reached on the record, "[our] task is complete and [we] should not disturb the result, even though [we have] the feeling [we] might have reached a different conclusion were [we] the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). Nevertheless, "if the trial court's findings are so clearly mistaken 'that the interests of justice demand intervention and correction,' then [we] should review 'the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" State v. Mann, 203 N.J. 328, 337 (2010) (quoting Johnson, supra, 42 N.J. at 162). "[We] owe no deference to the trial court in deciding matters of law. When a question of law is at stake, [we] must apply the law as [we] understand it." Ibid. (citations omitted).
Applying these standards, we discern no reason to disturb Judge Marino's ruling, as the record amply supports her findings. The troopers' observations of defendant's motor vehicle violations justified the stop. State v. Murphy, 238 N.J. Super. 546, 553 (App. Div. 1990). Also, since Judge Bartlett issued the search warrant based on facts known to the Task Force prior to the stop, the warrant would have been issued regardless of whether the troopers had found marijuana in defendant's car. Thus, the discovery of CDS would have been inevitable. See State v. Holland, 176 N.J. 344, 360-62 (2003); State v. Sugar, 100 N.J. 214, 236-37 (1985).
We reach a different conclusion as to defendant's sentence. Defendant entered an open guilty plea to a first-degree CDS offense. At sentencing, the State sought a fifteen-year sentence with five years of parole ineligibility. Defendant requested a sentence in the second-degree range based, in part, on his age (twenty-nine), and the lack of a prior criminal record, and because Austin received a thirteen-year sentence with a forty-two month parole disqualifier.*fn3 At the time of the present offense, defendant only had a 1998 conviction in Georgia for driving under the influence (DUI). He was convicted in Georgia of misdemeanor theft by taking and felony possession of CDS subsequent to the present offense.
A different judge sentenced defendant. The judge found, incorrectly, that defendant had two prior criminal convictions and one misdemeanor conviction in Georgia, making the present offense his third indictable conviction. The judge sentenced defendant to a thirteen-year term of imprisonment with five years of parole ineligibility, and five years of parole supervision upon release. The judge found and applied aggravating factors 3, "[t]he risk that the defendant will commit another offense," 6, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and 9, "[t]he need for deterring the defendant and others from violating the law". N.J.S.A. 2C:44-1a(3), (6), (9).*fn4 The judge found no mitigating factors.
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, this court must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) modify sentences only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
We discern no abuse of discretion in the finding and application of aggravating factor 9. General deterrence is always appropriate, where, as here, the less common need for specific deterrence is especially strong. We also find no support in the record for any mitigating factors. See Miller, supra, 205 N.J. at 127 (2011); Bieniek, supra, 200 N.J. at 608. However, the record does not support the finding and application of aggravating factors 3 and 6 based on defendant's prior criminal history. Defendant had no prior indictable convictions and only a single non-indictable DUI conviction before committing the present offenses.
The judge also incorrectly imposed five years of post-release parole supervision. The State admits that the provision of the No Early Release Act, N.J.S.A. 2C:43-7.2, requiring post-release parole supervision does not apply in this case. Accordingly, the five years of post-release parole supervision imposed on defendant must be removed from his judgment of conviction.
The judge also did not consider the disparity between defendant's and Austin's sentences. "Disparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232 (1996), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Even though a "sentence imposed on [a] defendant falls within the statutory limits mandated for the offense, 'there is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators.'" Ibid. (quoting State v. Hubbard, 176 N.J. Super. 174, 177 (Resentencing Panel 1980)); see also State v. Hicks, 54 N.J. 390, 391-92 (1969). Similarly, a sense of unfairness may arise from the receipt of a lengthier sentence than that imposed upon a more culpable participant in the criminal activity.
Although a defendant's sentence is not necessarily erroneous simply because it is greater or more severe than that of a co-defendant, it is a factor for this court to consider on appeal. Hicks, supra, 54 N.J. at 391. The question is not whether a defendant's sentence was greater than that of his co-defendant, but "whether the disparity is justifiable or unjustifiable." Roach, supra, 146 N.J. at 232-33. When reviewing whether a disparity exists between a defendant's and a co-defendant's sentences,
[t]he trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant.
It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. [Id. at 233.]
Here, Austin was the drug "kingpin," who sold drugs to numerous individuals. He was convicted in 2002 for second- degree death by vehicular homicide, N.J.S.A. 2C:11-5, and third-degree assault by auto, N.J.S.A. 2C:12-1c. He pled guilty in the current matter to two counts of first-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5a(1); second-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5a(1); second-degree possession of weapons during commission of CDS offense, N.J.S.A. 2C:39-4.1a; third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b; third-degree criminal attempt to distribute CDS, N.J.S.A. 2C:5-1; and two counts of second-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2. He was sentenced to a term of ten-years imprisonment with forty-two months of parole ineligibility. He was paroled on September 23, 2009, after serving less than three years of his sentence.
The judge failed to mention Austin's sentence when imposing sentence on defendant. The judge also failed to compare the prior criminal records of both defendant and Austin, did not consider defendant's limited role in the drug scheme, and did not consider the basis of the sentence imposed on Austin, and the length, terms, and conditions of both sentences. In the absence of that analysis, and due to the other sentencing errors we have noted, we reverse defendant's sentence and remand for further consideration of defendant's sentence and correction of his judgment of conviction to omit the five years of post-release parole supervision.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.