February 7, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM DYKEMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-05-0435.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2012
Before Judges Graves and Harris.
Defendant William Dykeman was charged in a seventeen-count indictment with committing various offenses against four separate women. A jury found him not guilty on seven counts, but he was found guilty on ten counts, including three counts of second-degree sexual assault (counts one, eight, and fifteen); three counts of third-degree criminal restraint (counts two, five, and twelve); two counts of third-degree terroristic threats (counts four and nine); and two counts of fourth-degree unlawful possession of a weapon (counts eleven and seventeen).
At defendant's sentencing hearing on July 15, 2005, the court noted that defendant had committed "separate and distinct crimes" against each of the four victims, and it determined that consecutive sentences should be imposed for "the crimes relating to each individual victim." The court also noted that defendant was being sentenced for "violent, cruel rapes," and it determined that an "upward departure from the presumptive sentence" was appropriate because the aggravating factors qualitatively outweighed the mitigating factor. On counts one, eight, and fifteen, the court sentenced defendant to three consecutive nine-year prison terms, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also received a consecutive four-year term on count two. The court imposed concurrent sentences for the remaining offenses. Thus, defendant's aggregate sentence was thirty-one years in prison with twenty-seven years subject to NERA. Appropriate penalties, assessments, and Megan's Law conditions were also imposed.
Defendant appealed his convictions and sentences. In an unpublished opinion,*fn1 we affirmed defendant's convictions. We also rejected his claims that the consecutive sentences were an abuse of discretion and that his aggregate sentence was manifestly excessive. However, because defendant was sentenced prior to State v. Natale, 184 N.J. 458 (2005), we remanded for resentencing to "determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.
Defendant was resentenced on July 24, 2009. At that time, the court again found that "consecutive sentences were appropriate" because there were "four separate victims" and "four separate acts." The court also stated that it had "done the weighing process that Natale requires" to determine whether the absence of the presumptive seven-year term for the sexual assaults required imposition of a different sentence, and the court found that it did not. Therefore, the court reimposed the original sentence.
On appeal, defendant presents the following argument through counsel:
THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER DEFENDANT'S INSTITUTIONAL ADJUSTMENT DURING HIS RESENTENCING. (Not Raised Below).
Defendant has presented additional arguments regarding his resentencing in pro se supplemental briefs dated August 17, 2009, and January 5, 2010.
After reviewing defendant's contentions in light of the record and the applicable law, we are satisfied that all of his arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm with the following comments.
Defendant relies on State v. Towey, 244 N.J. Super. 582 (App. Div.), certif. denied, 122 N.J. 159 (1990), to support his argument that his institutional progress should have been considered at resentencing. In Towey, we stated that "when resentencing has been ordered, all current information relevant to an appropriate appraisal of the [aggravating and mitigating] factors should be considered." Id. at 593. We noted, however, that when the purpose of the remand is to determine whether the original sentence comports with accepted guidelines, a sentencing court may only consider the evidence before the court at the time of the original sentence. Id. at 594 n.2.
Moreover, the Natale court stated:
As a result of today's decision, we will order a new sentencing hearing in each affected case based on the record at the prior sentencing. At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. [Natale, supra, 184 N.J. at 495-96.]
Based on our review of the record, we find no support for defendant's claim that this matter should be remanded for a new sentencing hearing, or that his aggregate sentence should be reduced. Defendant was resentenced as required by Natale, and his sentence does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984).