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State of New Jersey v. Kevin Jerome Hudson A/K/A Kywan Justice

February 6, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN JEROME HUDSON A/K/A KYWAN JUSTICE, KYWUN HUDSON, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice LaVECCHIA

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. Kevin Jerome Hudson (A-64-10) (066660)

Argued September 12, 2011 -- Decided February 6, 2012

[NOTE: This is a companion case to State v. Sally A. McDonald, also decided today.]

LaVECCHIA, J., writing for a majority of the Court.

The Court considers whether, under the circumstances in this case, defendant was properly sentenced under N.J.S.A. 2C:44-5 to multiple extended terms at separate sentencing proceedings.

In June 2006, defendant Kevin Jerome Hudson was indicted on twenty-three counts associated with multiple assaults on two women, G.R. and G.B. Because separate victims were involved, Hudson moved to sever the counts. The severance motion was granted, and defendant was subjected to two trials and two sentencing proceedings. The first trial and sentencing concerned crimes against G.R. that occurred on February 7, 2006. Hudson was convicted of four third-degree offenses. On one third-degree offense, he was sentenced on August 21, 2007 to an extended-term sentence of seven years imprisonment with a three-and-a-half year period of parole ineligibility. The sentences on the other offenses ran concurrently with the extended-term sentence. The second trial concerned assaults Hudson committed against G.B. on October 12, 2005 and February 8, 2006. He was found guilty of third-degree aggravated sexual assault (Count 13), and fourth-degree unlawful possession of a weapon (Count 15), both arising from the February 8, 2006 incident. The State filed a motion seeking a discretionary extended-term sentence. The court found that Hudson's multiple prior convictions qualified him as a persistent offender and determined that the imposition of the extended-term sentence in the first trial did not preclude the imposition of a second extended-term sentence because the indictments had been severed. After considering the extended-term range, the court imposed a five-year prison term with a two-year period of parole ineligibility on Count 13, which was made to run consecutively to the extended-term sentence Hudson already was serving. On Count 15, the court imposed an eighteen-month flat sentence, concurrent to the term on Count 13 but consecutive to the term Hudson was serving. Thus, Hudson's aggregate sentence on the two consecutive extended terms, imposed as a result of his one indictment and two trials, was twelve years, with a five-and-one-half-year parole ineligibility period.

The Appellate Division affirmed. The panel recognized that multiple extended terms may not be imposed in a single sentencing proceeding, but concluded that because Hudson sought severance and subjected himself to two separate sentencing proceedings, his sentence was not illegal. The Supreme Court granted Hudson's petition for certification, 205 N.J. 80 (2011), limited to whether it was an abuse of discretion to sentence Hudson to an extended term consecutive to the extended term he was then serving, 208 N.J. 385 (2011).

HELD: In this case in which an indictment was severed, resulting in two trials and two sentencing proceedings, and the first sentencing court imposed an extended-term prison sentence, it was error for the second court also to impose an extended-term sentence. The timing and sequence of the offenses and sentencings brought the defendant squarely under N.J.S.A. 2C:44-5(b)(1)'s proscription against multiple extended-term sentences.

1. The New Jersey Code of Criminal Justice makes available ordinary length sentences and extended-term sentencing options that impose greater punishment, most often because of an offender's past record. Although some extended-term sentences are mandatory, other provisions confer a sentencing court with the discretion to impose an extended-term sentence when specific prerequisites are met. A court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended prison term if the individual is found to be a persistent offender. In that case, the permissible sentencing range expands; the maximum sentence of the higher-degree range becomes the top of the extended-term range, while the bottom remains the minimum sentence of the ordinary-term sentencing range. (pp. 15-17)

2. N.J.S.A. 2C:44-5 guides sentencing in multiple-sentence circumstances. Subsection a addresses the sentencing of a defendant on multiple offenses in a single sentencing proceeding. It states that there shall be imposed "(2) not more than one sentence for an extended term" when a defendant is sentenced for more than one offense. Subsection b addresses prison sentences imposed at different times and states that when a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, "(1) the multiple sentences imposed shall so far as possible conform to subsection a. of this section." Here, the Court interprets subsection b, beginning with the words chosen by the Legislature, which should be given their ordinary meaning. If the language leads to a clearly understood result, the inquiry ends without resorting to extrinsic sources. (pp. 17-20)

3. Giving effect to the clear wording of N.J.S.A. 2C:44-5(b), Hudson unambiguously falls within its application, including its sweeping-in of subsection a's sentencing directives. Despite the fact that there was only one indictment, Hudson was subject to two trial proceedings and two sentencing proceedings. During the first sentencing, in which Hudson received an extended-term sentence, the State was aware of the severed trial that would occur later and of the timing of the offense to be tried in that matter. In the second sentencing, Hudson was sentenced on an offense that occurred at a time that preceded the imposition of his first sentence, triggering a straightforward application of subsection b. This is not a situation in which the court must apply subsection b to the type of cold case where the State was not aware of the possibility of defendant's connection with the other offense at the time of the first trial-a situation in which the State could not possibly combine or coordinate sentencing to fashion an appropriate overall sentence for multiple offenses. (pp. 21-25)

4. N.J.S.A. 2C:44-5(b)(1) directs that when a court imposes a sentence that may combine or overlap with a sentence the defendant already is serving, any sentence imposed "shall so far as possible conform to subsection a. of this section." Therefore, subject to the "so far as possible qualifier," the prohibition on multiple extended terms set forth in N.J.S.A. 2C:44-5(a)(2) applies to a defendant who is being sentenced for an offense committed prior to the former sentence that may combine or overlap with the sentence about to be imposed. The majority of the Court interprets the "so far as possible" language as meaning that the limitation is excused only when following its mandate would not be "possible," as opposed to "preferable" or "practicable"-words that were not used by the Legislature. Although the Legislature vested courts with discretion with respect to concurrent versus consecutive sentences in another subsection of the statute, it provided no equivalent vesting of discretion in respect of multiple extended-term sentences. However, the "so far as possible" qualifier would have applicability, for example, where the offense at issue in the second sentencing is one that is subject to a mandatory extended term, pursuant to N.J.S.A. 2C:43-6(f). In that case, the law requiring the mandatory extended term would override the more general sentencing direction contained in N.J.S.A. 2C:44-5(b)(1). (pp. 25-29)

5. The majority of the Court adheres to a plain-meaning reading of the language of N.J.S.A. 2C:44-5(b)(1), and finds that the timing and sequence of Hudson's offenses and sentencing bring him squarely under its application. The proscription against multiple extended-term sentences, incorporated from subsection a through subsection b, was applicable to Hudson, and it was legal error to have imposed a second extended-term sentence on Hudson in his trial on the charges stemming from his assaults on G.B. Because the sentence transgressed the legislative policies of N.J.S.A. 2C:44-5, Hudson's extended-term sentence on Count 13 must be reversed. (pp. 29-31)

The judgment of the Appellate Division is REVERSED only in respect of Hudson's sentence on Count 13. The matter is remanded for re-sentencing.

JUSTICE PATTERSON, DISSENTING, joined by JUSTICE HOENS, concludes that the "so far as possible" language in N.J.S.A. 2C:44-5(b)(1) is ambiguous, and that the Legislature included the language to provide sentencing judges with the discretion to ensure a given sentence would satisfy the Legislature's sentencing goals. Because Hudson's sentence was within the statutory range that would have been available to the sentencing court in a combined proceeding, she asserts that the Legislative purpose was fully achieved by Hudson's sentence.

JUDGE WEFING (temporarily assigned), CONCURRING IN PART and DISSENTING IN PART, is of the view that a sentencing judge in these circumstances has the discretion to impose a second extended-term sentence, but Hudson is entitled to be re-sentenced by a court that employs a three-to-five-year permissible range, rather than five to ten years.

CHIEF JUSTICE RABNER and JUSTICES LONG and ALBIN join in JUSTICE LaVECCHIA's opinion. JUSTICE PATTERSON, joined by JUSTICE HOENS, filed a separate, dissenting opinion. JUDGE WEFING (temporarily assigned), filed a separate opinion concurring in part and dissenting in part.

Argued September 12, 2011

On certification to the Superior Court, Appellate Division.

JUSTICE LaVECCHIA delivered the opinion of the Court.

In this appeal, and in its companion, State v. McDonald, __ N.J. __ (2012), separately conducted sentencing proceedings resulted in sentences that imposed, in their aggregate, multiple extended-term sentences. Previously, in State v. Papasavvas*fn1 and State v. Pennington,*fn2 we addressed N.J.S.A. 2C:44-5(a)(1)'s prohibition against sentencing a defendant to multiple extended terms in a single sentencing proceeding. In this appeal, we address, for the first time, the import of N.J.S.A. 2C:44-5(b)(1)'s incorporation of subsection a's prohibitions to certain offenses and sentencing proceedings, when sentencing is conducted in separate proceedings. Subsection b pertains when "sentences of imprisonment [are] imposed at different times," and provides that "[w]hen a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence . . .

(1) The multiple sentences imposed shall so far as possible conform to subsection a. of this section."

In this matter defendant, Kevin Hudson, was sentenced to a second extended-term sentence for an offense committed prior to the imposition of the extended-term sentence he was serving. The imposition of that second extended-term sentence fit, in all respects, the temporal requirements for subsection (b)(1)'s application. We hold that imposition of the second extended-term sentence transgressed the direction in N.J.S.A. 2C:44-5(b)(1) to incorporate subsection a's prohibition against a defendant serving an aggregate sentence that accumulates multiple extended-term sentences. Subsection b's plain language applies subsection a's bar against imposing a sentence comprised of more than one extended term for the conviction of an offense which was committed prior to the imposition of the defendant's current extended-term sentence but for which defendant is being sentenced after the imposition of the first extended sentence.

We find unavailing the argument that the "so far as possible" qualifier in subsection (b)(1) waters down the specific prohibition to a mere preference to be considered in the general discretion of the sentencing court. Rather, based on the Legislature's express incorporation in subsection b of the prohibitions enumerated in subsection a and its direction that they be given effect "so far as possible," we conclude that those limitations must be given effect and their application excused only when it is not possible to apply subsection a's limitations and parameters. That circumstance is not present here.

Both of Hudson's extended-term sentences stemmed from the same original indictment. He was tried and sentenced in separate proceedings as a result of his having moved for severance of the charges against him because two victims were involved. The extended-term sentence challenged herein was imposed in the second of the two trials on an offense that preceded in time the imposition of the extended-term sentence he was serving at the time of his second trial. Under these facts, the imposition of the second extended term violated N.J.S.A. 2C:44-5(b)(1), rendering it illegal. We are constrained to reverse and remand for resentencing.

I.

On June 12, 2006, Hudson was indicted in Monmouth County Indictment No. 06-07-1466 on twenty-three counts charging him with offenses associated with multiple assaults on two victims. He moved to sever the counts for trial because separate victims were involved. The severance motion was granted and, thereafter, he was subjected to two trials and sentencing proceedings.

The sentencing issue before us arose from the charges involving the victim, G.B. The trial that concerned the offenses involving the other victim, G.R., proceeded first. In the first trial, a jury found Hudson guilty of four third-degree offenses based on conduct that occurred on February 7, 2006. On one third-degree offense, the court sentenced defendant, on August 21, 2007, to an extended-term sentence of seven years imprisonment with a three-and-one-half-year period of parole ineligibility.*fn3 Defendant's sentences on the other offenses were made to run concurrently with the extended-term sentence.

Hudson then was tried for the offenses involving G.B., which concerned conduct that had occurred on October 12, 2005 and on February 8, 2006. Although there were multiple charges, defendant was found guilty on two counts -- second-degree aggravated assault (Count 13) and fourth-degree unlawful possession of a weapon (Count 15) -- both of which arose from the February 8, 2006 incident. The facts underlying those charges may be summarized briefly.

Hudson and G.B. became involved in a romantic relationship beginning in 2004. There was a significant age difference between the two as Hudson was twenty-five years older than G.B., who was in her early twenties at the time of the assaults described herein. On the evening of October 12, 2005, allegedly because she had not been in touch with him, Hudson attacked G.B. as she walked to her home from a local train station. After slashing her face with a scalpel-like device, he wrapped her wounds with gauze and left her at the scene of the attack. When this incident initially was investigated by law enforcement authorities, G.B. gave a physical description of her attacker, but did not identify him as Hudson. She later attributed her reticence to fear, yet continued to see him, even after she learned that he was involved with another woman (the other victim, G.R.), with whom he had a child.

G.B.'s relationship with Hudson again turned violent when, in the early hours of February 8, 2006, he was waiting for her at the train station. He made her walk with him to an apartment complex where he forced her to have sexual intercourse. Afterward, G.B. unsuccessfully attempted to escape and defendant hit her in the eye. She thereafter remained with him throughout the evening, eventually entering another building and sleeping for awhile. Later, Hudson became enraged when, after searching G.B.'s belongings, he found she had been deleting messages on her cell phone. A vicious attack ensued in which he twice attempted to suffocate her with a plastic bag and, when that proved unsuccessful, he used an eyebrow archer's razor to trace over and reopen her facial scar where he had cut her before. He also inflicted cuts to her neck. Afterward, he did not prevent her from going home.

G.B. reported the February 8, 2006, as well as the earlier October 12, 2005, incidents to the police and identified Hudson as the assailant in each. Approximately two weeks later, when she found Hudson again waiting outside the train station when she emerged, she called 9-1-1. Police arrived and apprehended him.

Hudson was tried on the charges involving G.B. in January 2007. The jury found him guilty of third-degree aggravated assault (as a lesser-included offense of Count 13, second-degree aggravated assault) contrary to N.J.S.A. 2C:12-1(b)(7), and fourth-degree unlawful possession of a weapon (Count 15) contrary to N.J.S.A. 2C:39-5(d). Both counts related to the February 8, 2006 incident.

The State filed a motion seeking imposition of a discretionary extended term. Defense counsel conceded that Hudson was extended-term eligible based on his prior record; however, he argued that an extended term could not be imposed because Hudson had been sentenced to an extended term in the earlier trial that stemmed from the same indictment. According to the State, that did not free Hudson from eligibility for another extended-term sentence.

The court found that Hudson qualified as a persistent offender under N.J.S.A. 2C:44-3(a) based on his prior record,*fn4 and determined that the imposition of an extended-term sentence in Hudson's earlier proceedings did not preclude the imposition of a second extended-term sentence because the indictments had been severed. The court explained, "this is a second sentencing hearing and he's being sentenced for different crimes committed on different dates against different victims," and thus distinguished Papasavvas, supra, 163 N.J. 565, which prohibited the imposition, on the same day, of multiple extended terms on counts from the same indictment.

After considering the extended-term range, the court imposed a five-year term of imprisonment with a two-year period of parole ineligibility on the third-degree aggravated-sexual-assault charge (Count 13), which was made to run consecutively to the extended-term sentence Hudson already was serving. On the fourth-degree charge of unlawful possession of a weapon (Count 15), the court imposed an eighteen-month flat sentence, concurrent to the term on Count 13, but consecutive to the term Hudson was serving.*fn5 In sum, Hudson's aggregate sentence on the two consecutive extended terms, imposed as a result of his one indictment and two trials, was twelve years, with a five-andone-half-year period of parole ineligibility.

The Appellate Division affirmed the sentence in an unpublished opinion. In addressing Hudson's arguments, the panel recognized that multiple extended terms may not be imposed in a single sentencing proceeding, but concluded that because Hudson sought severance and subjected himself to two separate sentencing proceedings, the bar in N.J.S.A. 2C:44-5(a)(2) that we addressed in Papasavvas, supra, 163 N.J. at 627, did not render defendant's sentence illegal. As the parties' arguments focused on the significance of defendant's original single indictment in respect of subsection a's application, the court's analysis did not touch on subsection b.

We granted defendant's petition for certification. State v. Hudson, 205 N.J. 80 (2011). Following a clarifying motion by the State, the grant of certification was honed to "whether it was an abuse of discretion to sentence defendant to an extended term consecutive to the extended term defendant was then serving." State v. Hudson, 208 N.J. 385 (2011). The Attorney General (AG) filed a motion for amicus curiae status, which we granted. Supplemental briefing has addressed the need to construe N.J.S.A. 2C:44-5(b)(1) when assessing the legality of defendant's sentence.

II.

A.

Hudson argues that had his indictment not been severed and the offenses tried in a single proceeding, only one extended term could have been imposed under N.J.S.A. 2C:44-5(a)(2). He claims that it is unfair to require a defendant to choose between the right to seek severance and the possibility of multiple extended terms. He adds that the imposition of multiple extended terms was particularly unfair in his case because the first trial judge, faced with imminent reassignment to the Civil Division, proceeded to sentencing before the second trial took place.

Further, Hudson argues that N.J.S.A. 2C:44-5(b)(1) precludes the imposition of his second extended-term sentence and urges favorable review of the recent Appellate Division decision in State v. Pennington, 418 N.J. Super. 548 (2011). In that case, the court held, based on N.J.S.A. 2C:44-5(b)(1), that a second extended term cannot be imposed on an offense occurring before the imposition of the first extended term. It distinguished other seemingly contrary appellate decisions as involving offenses, for which the second extended-term sentence was imposed, that were committed after the imposition of the original extended-term sentence.*fn6 According to Hudson, the scheduling of sentencing proceedings and the date of the offense are the controlling features for determining the propriety of sentencing a defendant to more than one extended-term sentence under N.J.S.A. 2C:44-5(b)(1). In further support, he cites to the commentary to Model Penal Code § 7.06(2)(a) (MPC), which section is identical to N.J.S.A. 2C:44-5(b)(1). Hudson argues that the commentary is further evidence that the purpose of this sentencing subsection is to prevent the timing or number of trials (and sentencing proceedings) from enlarging a defendant's overall sentencing exposure when the offense for which he is being sentenced, in the second sentencing proceeding, was committed prior to imposition of the first sentence. See MPC § 7.06 explanatory note (stating that "the timing of trials or the number of trials for different offenses should not affect the limitations established by Subsection (1)").

B.

The State's argument recognizes that pursuant to N.J.S.A. 2C:44-5(b), certain multiple terms of imprisonment, imposed at different times, "shall so far as possible conform to subsection a," N.J.S.A. 2C:44-5(b)(1), and, further, that subsection (a)(2) of the statute requires, in part, that "not more than one sentence for an extended term shall be imposed." Its argument hinges on subsection (b)(1)'s requirement that the sentence "shall so far as possible conform" with subsection a. According to the State, the word "shall" is mandatory, but the word "possible" "indicates that conformity to subsection a. is . . . less than absolutely required in all situations."

Claiming that the qualifying words are ambiguous, the State draws support from its view of the MPC Commentary to § 7.06(2)(a). Although the State acknowledges that the commentary supports the argument that subsection (b)(1)'s overall goal is to place defendants convicted of multiple offenses generally in the same sentencing position regardless of whether the offenses are tried together or separately, that purpose does not extend to the proscription against multiple extended-term sentences. It is argued that that proscription is subject to the exercise of the court's discretion.*fn7

In respect of Hudson specifically, the State argues that the fact that a discretionary extended term was granted should not control the sentence's legality; rather, the fundamental concern should be the real time that Hudson will serve. Because he received a five-year sentence for a third-degree crime, and because five years is the maximum period permitted for a third-degree crime, see N.J.S.A. 2C:43-6(a)(3), Hudson remained in the same position he would have been in had the indictment not been severed, which, the State argues, complies with the philosophy underlying N.J.S.A. 2C:44-5(b).

C.

The AG's argument turns first to the bar in N.J.S.A. 2C:44-5(a)(2). She argues, similarly to the State, that its prohibition against the imposition of multiple extended terms is inapplicable when courts impose extended terms on different occasions. The AG points to earlier Appellate Division decisions that found no violation of N.J.S.A. 2C:44-5(a)(2) when multiple extended-term sentences were imposed in different cases involving the same defendant, and emphasizes that the ...


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