September 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GIRBRON PARSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-01-0010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2012
Before Judges Payne, Reisner and Hayden.
At approximately 1:30 a.m. on March 16, 2003, defendant, Girbron Parson, and his co-defendant, Lamont Thomas, attempted to rob at gunpoint an all-night convenience store located in Jersey City. The occupants of the store, its owner, Abdelmalek Rezkalla, and his son, Raimey Rezkalla, resisted. Raimey was assaulted, and Abdelmalek was assaulted and shot in the chest by defendant. He subsequently died. Defendant and Parson fled, but were discovered in hiding shortly thereafter by the police. Thomas confessed almost immediately, but defendant did not.
Both defendants were indicted for third-degree theft, N.J.S.A. 2C:20-3; first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); second-degree aggravated assault, N.J.S.A. 2C:12-1b(2) and second-degree aggravated assault, N.J.S.A. 2C:12-1b(4).
On May 6, 1998, Thomas entered a guilty plea to armed robbery and an amended charge of aggravated manslaughter, N.J.S.A. 2C:11-4a, following an offer by the State of consecutive custodial terms of twenty years with seven years of parole ineligibility on each conviction. Additionally, he pled guilty to a charge set forth in a separate indictment of receipt of stolen property, N.J.S.A. 2C:20-7, the car used in the armed robbery, upon receipt of an offer of a five-year consecutive sentence. As a condition of Thomas's plea, he agreed to testify in accordance with his confession at any trial of defendant, thereby identifying defendant as a participant in the armed robbery and the person who shot Abdelmalek Rezkalla. At Thomas's plea allocution, the prosecutor incorrectly informed the trial judge that Rezkalla was shot in the head and the chest, when in fact, the autopsy report noted only that the victim had been shot in the chest.
On July 10, 1998, defendant also pled guilty to first-degree armed robbery and an amended charge of first-degree aggravated manslaughter, accepting the State's offer of thirty years in custody with fifteen years of parole ineligibility on the manslaughter charge and a consecutive sentence of twenty years in custody with ten years of parole ineligibility on the armed robbery charge.
The process of obtaining the plea was a drawn-out and contentious one. However, defendant eventually testified under oath that he and Thomas had entered St. George's Deli for the purpose of robbing the store. At the time, defendant was carrying a .38 caliber handgun. An older man and a younger man were present in the store. An altercation took place and, according to defendant, he "tried to pull the gun back, and a shot went off." The following exchange then occurred:
THE COURT: Shot him where?
THE DEFENDANT: I don't know.
THE COURT: How many fired?
THE DEFENDANT: One.
THE COURT: What was the cause of death?
[THE PROSECUTOR]: Two shots, head and chest.
THE COURT: The autopsy indicates two shots fired.
THE DEFENDANT: Well, the only thing I could figure in his head was when I hit him with the gun on his head.
THE COURT: Well -
THE DEFENDANT: I was there, so I should know how many times I shot him.
THE COURT: He was shot twice. [THE PROSECUTOR]: Yes, Judge.
THE COURT: So you're saying one shot, they're saying two bullets.
THE DEFENDANT: I don't know nothing about that. I shot one time.
Following further discussion on and off the record, matters resumed with this additional dialogue:
[THE PROSECUTOR]: Your Honor, the medical examiner lists the manner of death as single gunshot wound to the chest.
THE COURT: All right. Bring [defendant] out here, tell him he's correct, please.
[THE PROSECUTOR]: But I know there was another gunshot wound to the head. That was not listed as the cause of death.
THE COURT: Well, he's admitting to the one shot.
[THE PROSECUTOR]: That's fine.
The dispute was resolved by the trial judge's conclusion that there were two shots fired, but that the first shot to the chest caused the victim's death.
A further factual basis for the plea was then given by defendant, who stated that, when he entered the store, he showed the gun to the son and told him to open the cash register. At that point, the father came into the room and commenced fighting with Thomas. Defendant shot the father in the chest as he was trying to grab the gun.
The judge then clarified that defendant was pleading to aggravated manslaughter, not murder. The judge stated:
Okay. Now, do you understand you're not pleading guilty to purposeful murder, that you went in and shot somebody in the chest on purpose, what you're pleading guilty to is that you were so reckless, and when you went in with the gun he got shot with the gun that you were acting under circumstances manifesting extreme indifference to human life as to whether he lived or died. Do you understand that, sir?
Defendant responded, "Yes."
At sentencing, the judge imposed the sentence recommended by the State, finding aggravating factors 1 (the nature and circumstances of the offense), 2 (the gravity and seriousness of the harm, including whether the defendant knew the victim was particularly vulnerable), 3 (the risk of reoffense), 6 (the extent of defendant's criminal record*fn1 ), and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(1), (2), (3), (6), and (9). Prior to sentencing, defendant declined to express any remorse for his conduct. The judge responded:
You're not sorry? You don't want to say anything? Indicating no by shaking his head.
Doesn't surprise me at all. Not at all. Not one bit. The brutality that you showed that day just shows an utter lack of respect for life, care for life, no remorse, nothing. It's as if you can just do what you want to do in life and whatever the consequences are, they are. What a terrible way to have to live your life, Mr. Parson.
You're about to spend more time behind bars than you have lived on the face of this earth before you can be considered for parole. And you have nothing to say. I can't say anything. An attitude like that speaks volumes. Your silence is deafening.
You give me no choice but to sentence you to the fullest extent and to keep you behind bars as long as possible. I can't change what had happened. I can only try to the best of our ability to not have it happen again to another unfortunate family and victim. And I'm as sure as we are here today, I am sure that that could happen again based upon the attitude that you have placed before this court.
The aggravating factors on the manslaughter are the strong need to deter this defendant and others from this type of offense, not only the risk that you would commit another offense, the almost certainty of it. And the nature and circumstances of the offense, excluding the - the death, of course, which is an element of the offense but the nature of [the] way this happened, the holding down, the shooting in the head, the shooting of the victim.
The judge found no mitigating factors and declared that the aggravating factors "completely, substantially and totally outweigh the mitigating factors." In connection with the armed robbery conviction, the judge found aggravating factors three, six and nine.
Defendant appealed his sentence as excessive, and we affirmed it in an unpublished order. State v. Parson, No. A-2719-98 (App. Div. September 15, 1999). He also filed a pro-se petition for post-conviction relief (PCR), which, after assigned counsel became ill, was mistakenly dismissed without prejudice.
Defendant then filed a second PCR petition, which was denied without an evidentiary hearing. Defendant appealed, and we affirmed in part and reversed in part. State v. Parson, No. A-5124-06 (App. Div. March 27, 2009). In our opinion, we rejected most of defendant's arguments, but found to be significant defendant's claim that, as the result of the prosecutor's erroneous statement that the victim sustained two gunshot wounds, the trial judge imposed an enhanced sentence "due to the victim being shot twice, first in the chest then while he was held down and shot in the head." Slip op. at 14. We stated that we did not regard the misstatement to have been intentional. Nonetheless, we observed:
[D]efense counsel's failure to clarify the record and note the results of the autopsy report left the court with the misapprehension that defendant inflicted two gunshot wounds to the decedent, one to the chest and one to the head. At sentencing, the court did, in fact, consider the two gunshots and defense counsel again failed to present the autopsy report and correct the record. Defense counsel's failure in this regard leads us to conclude that he rendered ineffective assistance. Accordingly, we are constrained to remand the matter for an evidentiary hearing limited to a determination of whether defense counsel was ineffective in failing to bring the autopsy report to the court's attention and whether that failure adversely affected defendant's sentence. If the court finds that defendant's sentence was adversely affected by trial counsel's failure to clarify the number of gunshots, the court should resentence defendant accordingly. [Id. at 15.]
We likewise found appellate counsel ineffective for failing to raise the "two shot" issue, but noted that the effect of that conduct would be determined in the remand proceedings. Id. at 15-16.
On remand, the trial judge held oral argument and then issued a lengthy written opinion, in which he concurred in the conclusion that trial counsel had been ineffective in failing to bring the autopsy report to his attention, but he concluded that counsel's error had not had any effect on defendant's sentence, as would be required for resentencing to occur pursuant to Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987). The judge noted defense counsel's argument that the language of the judge's sentencing decision suggested that defendant had received the maximum sentence because the judge found defendant had killed the victim "execution style" by holding him down after the first shot to the chest and shooting him again in the head, rather than in circumstances suggesting a "robbery gone bad." The judge noted that counsel also argued that the judge would not have found aggravating factors one and two if he believed there was only one gunshot and he would not have imposed a fifty-year sentence, but rather a forty-year sentence like that imposed on Thomas if the true facts had been disclosed.
After a lengthy review of the plea and sentencing transcripts, the judge concluded that he had accepted the plea based on defendant's admission of a single shot to the chest. He stated: "The colloquy concerning the autopsy was simply for purposes of expanding the record to discuss the autopsy issue but did not influence this court in either the plea or the sentence." Thus, although defendant had succeeded in showing that his trial attorney's performance was deficient, because the discussion of the autopsy did not affect the sentence, defendant had not shown by "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698 (1984).
The judge continued:
This court at all times knew and understood Petitioner shot the victim once in the chest. The plea colloquy discussed this issue and Petitioner pled guilty to one shot to the chest. There was discussion and speculation as to whether there was a second shot; however, the plea was accepted relating to one shot to the chest. In the court's sentence the court mistakenly said one shot to the head when it should have said one shot to [the] chest. That is the only aspect of the court's finding that is not correct. This court should have stated "chest," not "head." However this was certainly inadvertent and did not cause the court to impose a greater sentence.
Regardless, that detail was not the controlling factor; rather, it was Petitioner's prior record, the need to deter this defendant, and his risk of reoffending. (Footnotes omitted.)
The judge cured his mistake by re-stating the applicability of aggravating factors three, six and nine to the manslaughter conviction as they appeared initially, and then stating with respect to aggravating factors one and two:
And the nature and circumstances of the offense, excluding the death of course, which, which is an element of the offense but the nature of the way this happened, the holding down, the shooting in the head (chest), the shooting of the victim. Following the denial of PCR, defendant again appealed, raising the following issues for our consideration:
POINT I: THE TRIAL COURT ERRED BY RULING THAT MR. PARSON'S SENTENCE WAS NOT AFFECTED BY DEFENSE COUNSEL'S FAILURE TO ALERT THE COURT THAT THE VICTIM WAS NOT HELD DOWN AND SHOT IN THE HEAD AFTER BEING ACCIDENTALLY SHOT IN THE CHEST.
POINT II: THE TRIAL COURT ERRED BY CONSIDERING AGGRAVATING FACTORS NUMBER ONE (THE NATURE AND CIRCUMSTANCES OF THE OFFENSE) AND TWO (THE GRAVITY AND SERIOUSNESS OF HARM INFLICTED UPON THE VICTIM) WHEN THERE WAS NO SUPPORT IN THE RECORD AND THEN IMPOSING THE MAXIMUM CONSECUTIVE SENTENCES.
A. The trial court erred by not properly weighing the aggravating and mitigating factors.
B. The trial court erred by imposing consecutive sentences.
C. The trial court erred by imposing a disparate sentence.
We find no merit in defendant's arguments as they relate to the imposition of consecutive sentences, the length of his sentence on the armed robbery conviction, and his claim of disparate sentencing. R. 2:11-3(e)(2). We add only that the fact that the armed robbery was committed on both Abdelmalek and Raimey Rezkalla, whereas the aggravated manslaughter involved only Abdelmalek, justified the imposition of consecutive sentencing under the factors set forth 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). Additionally, we are satisfied that defendant, as the shooter and a person who failed to cooperate with the police, was not in an identical or substantially similar position to Thomas for purposes of evaluating the applicability of relevant sentencing factors. State v. Roach, 146 N.J. 208, 244 (Roach I), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
We are, however, troubled by the judge's continued reliance on aggravating factors one and two, and on the factual basis utilized by him for finding them relevant. As we have stated, the judge included, in describing the nature and circumstances of the offense, the fact that defendant held the victim down and shot him in the "head (chest)." However, neither such scenario is supported by the plea transcript or, for that matter, any other testimony or statement given in connection with defendant's prosecution. The only evidence of record suggests that there was a struggle over a gun held by defendant, and it went off.
Moreover, the scenario depicted by the judge is one that would support a charge of murder. As the judge made clear to defendant at the time of his plea, he was not pleading guilty to purposeful murder, "that you went in and shot somebody in the chest on purpose." Rather, he was pleading guilty to manslaughter, admitting that he was reckless and, when the gun went off, that he was manifesting extreme indifference to human life. The invocation of a scenario that was not supported by the record and constituted a crime to which defendant had not pled to support aggravating factors was improper. State v. Sainz, 107 N.J. 283, 293 (1987).
As a final matter, we are unable to find in the record any articulated basis, supported by the record, for the invocation of aggravating factors one and two other than the death of the victim. But the death of the victim may not be used as an aggravating factor in a manslaughter case. State v. Jarbath, 114 N.J. 394, 404 (1989); State v. Briggs, 349 N.J. Super. 496, 504-05 (App. Div. 2002); State v. Towey, 244 N.J. Super. 582, 593 (App. Div.), certif. denied, 122 N.J. 159 (1990).
Because we are uncertain whether the trial court would impose the same sentence on the manslaughter conviction in the absence of aggravating factors one and two, we again remand the matter for further consideration of the sentence imposed.
Remanded for further proceedings in accordance with this opinion.