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State v. Locane

Superior Court of New Jersey, Appellate Division

March 23, 2018

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
AMY LOCANE a/k/a AMY BOVENIZER, and AMY LOCANE-BOVENIZER, Defendant-Respondent.

          Argued October 18, 2017 and February 15, 2018

          On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-12-0770.

          Matthew Murphy, Assistant Prosecutor, argued the cause for appellant (Michael H. Robertson, Somerset County Prosecutor, attorney; Matthew Murphy, on the brief).

          Gilbert G. Miller argued the cause for respondent (McDonald & Rogers, LLC, and Wronko Loewen Benucci, attorneys; Michael J. Rogers, of counsel; Gilbert G. Miller, of counsel and on the brief).

          Before Judges Alvarez, Nugent, and Geiger.

          OPINION

          ALVAREZ, P.J.A.D.

         On July 22, 2016, we affirmed defendant Amy Locane's convictions after a jury trial. She was found guilty of the lesser-included offense of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a), third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2), and related motor vehicle offenses.

         Because of errors in the sentence, however, we remanded the matter. Contrary to our decision, the trial judge on January 13, 2017, imposed the same terms of imprisonment, employing virtually the same analysis of statutory aggravating and mitigating factors. See N.J.S.A. 2C:44-1. We again vacate and remand, this time directing that a different judge resentence defendant.

         The circumstances of the offenses found in the trial record are fully described in our earlier unpublished opinion. State v. Locane, No. A-2728-12 (App. Div. July 22, 2016). We provide new factual circumstances developed during the second sentence hearing in the relevant sections of our discussion. By way of introduction, it is necessary only to reiterate that the State's forensic psychopharmacologist testified at the trial that when defendant crashed into the victims' car, her blood alcohol concentration (BAC) was likely .23 percent. She was driving at approximately fifty-three miles per hour in a thirty-five mile per hour zone.

         The driver of the car she struck, Fred Seeman (Seeman), [1] was severely injured. He had been turning into his driveway at the moment of impact. Seeman's wife, Helene, died from her injuries at the scene. Her death was witnessed by the Seemans' youngest son, then a teenager, who ran out of the house when he heard the sound of the collision.

         I.

         First Sentence and Remand

         Defendant was first sentenced on February 14, 2013. The trial judge then downgraded the lesser-included second-degree conviction for vehicular homicide to a third-degree crime. He imposed a term of three years' imprisonment on that offense, but did not include the three-year parole bar mandated by N.J.S.A. 2C:11-5(b)(1). The judge sentenced defendant to a concurrent three-year term of imprisonment on the assault by auto conviction. The State appealed the sentence; defendant cross-appealed the conviction.

         Prior to the sentence date, defendant voluntarily reported to the county jail and was therefore in custody when sentenced. She was released from prison on June 12, 2015, after serving eighty-five percent of her three-year sentence as called for by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She is presently serving her parole supervision term as required by the statute.

         Significant time passed between the conviction and the direct appellate review that followed because, after being represented by private counsel during the trial, defendant sought the services of the Public Defender's Office, a request initially opposed by the prosecutor. See State v. A.L., 440 N.J.Super. 400 (App. Div. 2015).

         In our prior decision on the direct appeal, we found the sentence illegal because the judge failed to impose the mandatory three-year parole bar. Locane, slip op. at 48-49; see N.J.S.A. 2C:11-5(b)(1) . The judge also failed to apply the two-step analysis required by N.J.S.A. 2C:44-1(f) (2) prior to a conviction downgrade. Locane, slip op. at 4 9-5 3; see State v. Megargel, 143 N.J. 484, 495 (1996). Furthermore, he overlooked the single most important factor in the sentencing calculus: the severity of the offense. Locane, slip op. at 50-51; see Megargel, 143 N.J. at 500.

         We explained in our decision that in determining whether the interests of justice demanded a downgrade of the offense, defendant's overall character was not to be included because the statute was offense-oriented. See id. at 499; State v. Lake, 408 N.J.Super. 313, 328-29 (App. Div. 2009). The trial judge justified the downgrade primarily because of the impact that defendant's imprisonment would have on her children, and her successful efforts at controlling her alcoholism. We reiterated black-letter law that the focus of the downgrade decision must be the severity of the crime, not defendant's personal circumstances. See State v. Read, 397 N.J.Super. 598, 612 (App. Div. 2008).

         Finally, we directed the judge when resentencing defendant to revisit the impact of State v. Yarbough, 100 N.J. 627, 630 (1985). In the 2013 sentencing decision, the judge had ignored the severity of defendant's conduct. See State v. Abdullah, 184 N.J. 497, 515 (2005); State v. Rogers, 124 N.J. 113, 121 (1991).

         The trial judge during the difficult and lengthy trial committed no reversible error. Out of an abundance of respect for that significant and noteworthy accomplishment, we couched reversal of the sentencing decision in neutral terms. But we clearly explained that the sentence was erroneous, beginning with the failure to impose the mandated parole bar, followed by the failure to adhere to the statutory analysis on the downgrade of the second-degree conviction to a third, and ending with the failure to impose consecutive sentences for the grave harm inflicted on two separate victims. See State v. Carey, 168 N.J. 413, 428 (2001) ("Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences.").

         Nullification of Mandatory Parole Bar by Alleyne v. United States; Downgrade of Third-Degree Offense

         In the intervening years between the first and second sentence hearings, the law changed. The State's appeal and defendant's cross-appeal were pending when the United States Supreme Court decided Alleyne v. United States, 57 0 U.S. 9 9 (2013). Alleyne stands for the proposition that a mandatory minimum sentence, such as the three-year parole bar[2] found in our vehicular homicide statute, violates the Sixth Amendment right to a jury trial when a fact upon which it is predicated, such as intoxication, is not submitted to the jury for their determination. Alleyne, 570 U.S. at 115-16. In other words, unless a jury finds a defendant was intoxicated when the homicide occurred, no sentence enhancement can be imposed.

         In State v. Grate, 220 N.J. 317 (2015), our own Supreme Court applied Alleyne to a statute that requires imposition of a mandatory minimum sentence when the sentencing judge, not a jury, finds that a defendant is involved in organized criminal activity, N.J.S.A. 2C:39-5(i). Grate, 220 N.J. at 323-24. The Court held that a mandatory minimum sentence, when based on a judicial finding of fact, "cannot survive constitutional scrutiny." Ibid.

         The indictment in this case, which charged first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), made no mention of defendant's intoxication. Neither did the verdict sheet submitted to the jury, which included the option of the lesser-included second-degree vehicular homicide offense.

N.J.S.A. 2C:11-5(a) states that "[p]roof that the defendant was driving while intoxicated in violation of R.S. 39:4-50 . . . shall give rise to an inference that the defendant was driving recklessly." N.J.S.A. 2C:11-5(b)(1) then goes on to state that when a defendant operates a motor vehicle

with a blood alcohol concentration at or above the prohibited level as prescribed in R.S. 39:4-50, . . . the defendant shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, during which the defendant shall be ineligible for parole.

         Lastly, N.J.S.A. 2C:11-5b(2) provides "[t]he court shall not impose a mandatory sentence pursuant to paragraph (1) of this subsection unless the grounds therefor have been established at a hearing." The hearing can take place "at the time of sentencing, " and requires that the prosecutor establish by a preponderance of the evidence that defendant's BAC was at or above the .08 level found in N.J.S.A. 39:4-50. This procedure, as the trial judge found during the remand sentence hearing, was unconstitutional after the Alleyne decision. The doctrine clearly applies to cases, such as this one, that were in the pipeline after the date of decision. See Grate, 220 N.J. at 335.

         The Alleyne issue was not raised on appeal. We should have, but did not, sua sponte consider the effect of Alleyne and Grate on our remand decision. At the remand sentence proceeding, the trial judge correctly concluded that he could not impose the three-year minimum parole bar.

         The trial judge also downgraded the third-degree offense of assault by auto related to Seeman's injuries to a fourth-degree offense. N.J.S.A. 2C:12-1(c)(2) states that "assault by auto . . . is a crime of the third degree if the person drives the vehicle while [intoxicated] in violation of R.S. 39:4-50 . . . and serious bodily injury results." N.J.S.A. 2C:12-1(c)(1) makes a person guilty of assault by auto when a "person drives a vehicle . . . recklessly and causes either serious bodily injury or bodily injury to another. Assault by auto ... is a crime of the fourth degree if serious bodily injury results."

         Since the jury made no findings as to defendant's intoxication, grading the crime as a third-degree offense was no longer constitutional. The conviction could survive only if molded to the fourth-degree crime defined in the statute.

         The Remand Sentence

         The trial judge understood the remand as requiring him only to more fully explain his reasons for the sentence. He supported this view by citing to the portion of our decision in which we said, as appellate courts often do, that we took no position with regard to any new sentence he might impose. In reiterating the same perspective he expressed during the first sentencing proceeding, the judge disregarded our extensive discussion regarding the legal standard for a downgrade. As he did at the initial sentencing hearing, the judge on remand focused on the personal circumstances particular to this defendant and not the severity of the crimes she had committed.

         After explaining that Alleyne prevented the imposition of a parole bar on the second-degree offense and mandated the reduction of the third-degree assault to a fourth-degree offense, the judge added "[t]he purpose of sentencing law starts with the proposition that our [s]tatutes address correction and rehabilitation of offenders, differentiation among offenders, with a view toward individualization, and justness in their treatment."

         The judge again gave slight weight to aggravating factor nine. N.J.S.A. 2C:44-1(a)(9) . He found in mitigation factors two, four, six, eight, nine, and eleven. N.J.S.A. 2C:44-1(b)(2), (4), (6), (8), (9), (11). The judge again downgraded the vehicular homicide from a second-degree offense to a third-degree crime, imposing the lowest possible term of imprisonment within that range. He sentenced defendant to precisely the same term on the vehicular homicide - a three-year term of imprisonment - with an eighteen-month sentence on the now fourth-degree assault by auto.

         Because the trial judge was presented with evidence that defendant had been sober since the conviction, he opined that aggravating factor nine had slight weight, and he found that there was no need to deter her from future acts of drunken driving. The judge gave no weight to the need for general deterrence.

         In 2017, the judge focused, as he did in 2013, on mitigating factor eleven, the potential harm incarceration would inflict on defendant's children. He was presented with a psychological report stating that defendant's reincarceration would traumatize her children and potentially have lifelong consequences. At the time of the second sentence, defendant was divorced, the children were in the sole custody of their father, and they saw their mother every other weekend and one evening a week. The youngest child, who suffers from Crohn's Disease, had physically stabilized, and was no longer dependent upon her mother for basic nutrition, as was alleged during the first sentence hearing.

         As to the downgrade, the judge stated that there was "no compelling, or persuasive reason to return this [d]efendant to prison." He added, "[a]lthough the degree of crime is the focus of the sentence, facts personal to the [d]efendant may be considered in the sentencing process." Since he viewed defendant's offense as unlikely to recur, he considered it unnecessary to impose even a five-year sentence, the lowest in the second-degree range for vehicular homicide. He calculated that a five-year sentence would require defendant to return to prison for a minimum of 20.4 months under NERA, while serving "no legitimate sentencing purpose, other than retribution."

         That defendant killed one person and significantly injured another, the judge opined, did not "rule the day." He added that in viewing "the fairness of the overall sentence, " "[d]efendant's conduct may constitute multiple offenses, [but] the sentencing phase concerns the disposition of a single, not a multiple human being."

         The judge described Yarbough as a guideline which left a "fair degree of discretion with the sentencing court." Although two victims might seem to require a consecutive sentence, "[a] qualitative analysis [rendered] a different result." Focusing on his favorable view of defendant's rehabilitative efforts after the accident, he considered a concurrent sentence to be appropriate.

         The judgment of conviction states that the court found aggravating factor nine, and mitigating factors six, seven, eight, nine, and eleven. N.J.S.A. 2C:44-1(b)(7). The judgment also states that:

under State v. Yarbough, courts have a duty to look at an individual offender in balancing the aggravating and mitigating factors to determine the proper range of sentence. State v. Yarbough, 100 N.J. 627, 636 (1985), cert, den Tied], 475 U.S. 1014 (1986). Aggravating and mitigating factors are utilized to insure that sentencing is individualized without being arbitrary. The factors insure that the sentence imposed is tailored to the individual offender and to the particular crime he or she committed. State v. Sainz, 107 N.J. 283, 289 (1987).

         The judgment further noted that aggravating factor nine was accorded only "minimal weight."

         In a subsequent judgment filed on February 1, 2017, titled "Form Correction, " the judge added that "because [defendant] was intoxicated . . . mitigating factor [two] can be applied, but it is assigned minimal weight in the balance, since it is fairly assumed that while an intoxicated driver does not contemplate harm will result, certainly she should have." N.J.S.A. 2C:44-1(b)(2).

         The State raises the following points ...


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