STATE OF NEW JERSEY v. FLEMING A. LEWIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0143-04T50143-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FLEMING A. LEWIS,

Defendant-Appellant.

 

Argued: February 16, 2006 - Decided August 21, 2006

Before Judges Fall, Grall and King

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Number 2498-07-03.

Francis J. Hartman argued the cause for appellant.

Laurie A. Corson, Assistant Prosecutor, argued the cause for respondent (Vincent P. Sarubbi, Camden County Prosecutor, attorney; Ms. Corson, of counsel, on the brief).

PER CURIAM

On June 18, 2004, defendant Fleming A. Lewis was convicted by a jury in Camden County Indictment Number 2498-07-03 of third-degree burglary, N.J.S.A. 2C:18-2 (count one); disorderly-persons criminal mischief, N.J.S.A. 2C:17-3a(1) (count three); disorderly-persons resisting arrest, N.J.S.A. 2C:29-2a(1) (count four); and fourth-degree criminal contempt, N.J.S.A. 2C:29-9 (count five). Defendant was acquitted of fourth-degree aggravated assault charge contained in count two.

The State moved for imposition of an extended term pursuant to N.J.S.A. 2C:44-3a, on the basis that defendant was a persistent offender. On July 23, 2004, the trial court conducted a sentencing hearing. After hearing arguments, the court granted the State's motion for an extended term sentence. On the third-degree burglary conviction, the court imposed a seven-year extended term of imprisonment with a parole disqualifier of two and one-half years. The court made that term concurrent to an eighteen-month term of imprisonment imposed on the fourth-degree criminal contempt conviction on count five, but consecutive to a six-month term imposed on the disorderly-persons conviction for resisting arrest on count four. The disorderly-persons criminal mischief conviction on count three was merged with count one and dismissed. The aggregate term imposed of seven and one-half years imprisonment with two and one-half years of parole ineligibility was to run consecutive to a three-year term of imprisonment given to defendant on his conviction on a violation of probation charge under Camden County Accusation Number A-3502-10-02. Applicable minimum mandatory fines and penalties were also assessed.

The following factual and procedural history is relevant to our consideration of these arguments. On September 30, 2002, Valerie Lewis, the defendant's ex-wife, filed a complaint in the Family Part under the Prevention of Domestics Violence Act, N.J.S.A. 2C:25-17 to -35, seeking a restraining order against defendant. On October 3, 2002, the Family Part issued a final restraining order (FRO), prohibiting the defendant from future acts of domestic violence and barring him from the parties' marital residence at 10 Ford Court, Sicklerville, New Jersey, as well as from any place where Valerie Lewis lived, worked or could regularly be found. Defendant was also barred from having any oral, written, personal or other contact or form of communication with her. Ms. Lewis was granted exclusive possession of the marital home, as well as custody of the parties' children. The restraining order further provided that law enforcement officers were to accompany the defendant to the residence to obtain his personal effects.

On December 6, 2002, defendant was sentenced in the Law Division to a term of probation for conviction of unlawful possession of a weapon. As a condition of his probation, the defendant was again ordered not to have any contact with Ms. Lewis.

The evidence adduced by the State at trial, if credited, disclosed that later that same day December 6, 2002 at approximately 7:30 p.m., defendant telephoned the marital home and his eleven-year old son, Tori, answered.

Tori testified that during the telephone conversation with the defendant, the defendant got angry when Ms. Lewis refused to come to the telephone and then stated, "Don't make me drive my truck into the garage." Tori also stated that he told his father to please hold, so he could call the police. According to Tori, he gave the phone to his mother and then called 911.

Ms. Lewis testified that the defendant was screaming at her over the telephone to remove the FRO that prohibited him from contacting her and returning to the marital home. He also threatened Ms. Lewis that he was going to come to her home and drive through the garage door.

After Tori called 911, Winslow Township Police Officer James Passarella arrived at the Lewis home and parked his patrol car at the mouth of the driveway, partially blocking the entrance to the driveway. Officer Passarella entered the home and Ms. Lewis locked the door behind him. At that time, Ms. Lewis was still on the telephone with the defendant. Officer Passarella took the telephone from Ms. Lewis, identified himself as a police officer, told defendant that he was in violation of the domestic violence restraining order, and instructed defendant to go to police headquarters. The defendant then told the officer that he "wouldn't have to find him," and hung up the phone.

Shortly thereafter, while Officer Passarella was still present in the Lewis home, the defendant arrived in a black Chevrolet Blazer. He maneuvered around the police patrol car, and drove his vehicle into the garage door as he had earlier threatened.

In his brief, defendant alleges he did not intentionally drive into the garage door, contending there was ice in the driveway and his car slid into the garage door. The defendant also denied being able to drive into the driveway because the officer's car filled the entire driveway.

After striking the garage door, defendant exited his vehicle. He approached the front door of the house, opened the glass storm door, and kicked the main door two or three times, breaking it open. In his brief, defendant claims he slipped on the ice and knocked the door open accidentally.

Officer Passarella testified that the defendant charged him, and that he sprayed the defendant with pepper spray in order to subdue him. Defendant claims that he slipped and did not charge the officer. After being pepper sprayed, the defendant fell to one knee and then got up and charged Officer Passarella again. After a brief struggle, Officer Passarella was able to place handcuffs on the defendant and arrest him.

In granting the State's motion for imposition of an extended term, the trial judge determined that the defendant met the statutory criteria for an extended term, and then ruled that the protection of the public required that the defendant be sentenced as a persistent offender. The trial judge concluded that the incident on December 6, 2002, was an event "imbued with violence." The judge found that the following aggravating factors were applicable: N.J.S.A. 2C:44-1a(1), the nature and circumstances of the offense; N.J.S.A. 2C:44-1a(3), the risk that defendant will commit another offense; N.J.S.A. 2C:44-1a(6), the extent of defendant's prior criminal record; and N.J.S.A. 2C:44-1a(9), the need for deterring defendant and others from violating the law. The judge emphasized her belief that the defendant had demonstrated a gross and substantial disregard for the law, focusing on the fact that he had been advised earlier in the day on December 6, 2002, that his probation was conditioned on his respect for the FRO.

The judge rejected the mitigating factors proposed by defense counsel, and further emphasized the fact that defendant had previously been in possession of a weapon without a license, which was a crime that made him a person from whom the public needed to be protected. The judge also found that the offense was not a result of circumstances that were unlikely to recur, instead concluding that there was a chance that the defendant could threaten his ex-wife and children again. The judge noted that defendant required kidney dialysis, and concluded that his imprisonment would entail excessive hardship, N.J.S.A. 2C:44-1b(11).

In weighing these factors on a qualitative, as well as a quantitative basis, the judge stated she was clearly convinced that the aggravating factors substantially outweighed the mitigating factors.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE SENTENCE IMPOSED UPON THE DEFENDANT WAS DETERMINED IN VIOLATION OF HIS RIGHT TO TRIAL BY JURY AND RIGHT TO DUE PROCESS.

POINT II

THE TRIAL COURT ERRONEOUSLY CONCLUDED THAT THE DEFENDANT SHOULD BE GIVEN AN EXTENDED TERM IN ORDER TO PROTECT THE PUBLIC.

Defendant argues that the extended-term sentence of seven years imposed by the trial court violates his right to trial by jury and right to due process. He contends that, at most, he should have received the presumptive ordinary term of four years for his third-degree burglary conviction, pursuant to N.J.S.A. 2C:44-1f(1)(d). In support of this claim, the defendant relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 403 (2004), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

In State v. Dunbar, 108 N.J. 80 (1987), the Court addressed the "standards for imposing an extended term of imprisonment on a persistent criminal offender under N.J.S.A. 2C:43-7 and any effect that decision has on the discretionary power of the court to impose a period of parole ineligibility under N.J.S.A. 2C:43-7b." Id. at 82. The Court stated that when a trial court considers imposition of an extended sentence on a first-, second-, or third-degree crime offender, it may do so "only if it finds that the defendant is either (1) a persistent offender, (2) a professional criminal, or (3) a hired criminal." Id. at 88. Once a court has determined that the statutory criteria for subjecting a defendant to an extended term have been met, the court must then decide whether to impose an extended sentence. Id. at 89. Third, the court must then weigh the mitigating and aggravating circumstances to determine the base term of the extended sentence. Ibid. Finally, the court must determine whether to impose a period of parole ineligibility. Ibid.

The standard to be employed in determining whether to impose an extended term, once the statutory criteria have been met, is whether an extended term is necessary for the protection of the public. Id. at 90-91. The Court concluded that "once the decision to impose an extended term has been made, the court should then return its focus primarily to the offense[,]" and that "'[t]he conduct that is the occasion for the sentence controls the severity of the sentence.'" Id. at 91 (quoting Model Penal Code and Commentaries (Official Draft and Revised Comments) 6.07 comment at 174 (1985)).

N.J.S.A. 2C:43-6a(3) provides that crimes of the third degree are punishable by a "specific term of years which shall be fixed by the court and shall be between three years and five years[.]" The presumptive sentence for a crime of the third degree was four years in prison. N.J.S.A. 2C:44-1f(3)(d).

Here, the trial judge concluded that defendant fell within the definition of a persistent offender pursuant to N.J.S.A. 2C:44-3a, which provides, in pertinent part:

A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

There is no dispute that defendant meets this statutory criteria. Thus, the first prong of the extended-term test was met because the defendant qualified as a persistent offender.

Defendant argues, however, that Blakely stands for the proposition that "a defendant's constitutional right to trial by jury extends to the sentencing for his crime, and that the maximum sentence that a judge can [impose] must be based solely on facts reflected in a jury verdict or admitted by the defendant." In Blakely, supra, the United States Supreme Court ruled that, "'[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" 542 U.S. at 301, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000)).

The "recidivism exception" carved out from this requirement of a jury determination has been held a proper basis for a court to increase an offender's sentence. Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 1230, 140 L. Ed. 2d 350, 368 (1998), reh'g denied, 544 U.S. 994, 125 S. Ct. 1836, 161 L. Ed. 2d 763 (2005). In addition, here, defendant's prior convictions were "established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees" of the Constitution. See Jones v. United States, 526 U.S. 227, 249, 119 S. Ct. 1215, 1227, 143 L. Ed. 2d 311, 330 (1999). Therefore, the "persistent offender" criteria utilized by the trial court in imposing an extended sentence falls within the recidivism exception of Blakely and Apprendi. See State v. McMillan, 373 N.J. Super. 27, 28 (App. Div. 2004) (holding that a defendant who has been sentenced to an extended period of parole ineligibility and an extended sentence due to past recidivism does not require a jury to determine facts legally essential to his sentence beyond a reasonable doubt and that such a case falls "squarely within the recidivism exception to Blakely" and does not require any further jury review), certif. denied, 182 N.J. 628 (2005); accord State v. Drew, 383 N.J. Super. 185, 202-03 (App. Div.), certif. denied, 187 N.J. 81 (2006); State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005).

Defendant further argues that the notion in Dunbar, supra, 108 N.J. at 96, that the decision to impose an extended term requires consideration of the need for public protection, should be considered by a jury, not a judge. On August 2, 2006, our Supreme Court issued its decision in State v. Pierce, ___ N.J. ___ (2006), in which the Court reexamined the stepped extended-term sentencing analysis outlined in Dunbar, supra, 108 N.J. at 89, with respect to consideration of the State's application for imposition of a discretionary extended term pursuant to N.J.S.A. 2C:44-3a.

In Pierce, supra, the defendant was sentenced to a discretionary extended term of imprisonment that was below the presumptive sentence applicable to the extended range. ___ N.J. at ___ (slip op. at 7). The trial court had "applied the stepped analysis identified in Dunbar to determine whether to sentence defendant, as requested by the State, to a sentence within the discretionary extended-term range on the first-degree robbery conviction[.]" Id. at ___ (slip op. at 5). As here, the trial court in Pierce found that the defendant qualified for imposition of an extended term as a "persistent offender," and then analyzed the three additional steps in Dunbar, concluding

that there was a need to protect the public and that therefore a sentence within the extended-term was appropriate (step two). The court then evaluated the aggravating and mitigating factors for purposes of establishing a base term (step three) and also analyzed whether to impose a period of parole ineligibility (step four).

[Id. at ___ (slip op. at 6-7).]

There, as here, the defendant argued "that his Sixth Amendment rights are violated when a court, and not a jury, decides facts that determine whether he will be sentenced to a term of imprisonment that exceeds the maximum for the ordinary-term range otherwise applicable for his convictions." Id. at ___ (slip op. at 8). The Court framed the issues as "whether any fact-finding, other than the fact of prior convictions was necessary before the court could impose defendant's persistent-offender sentence." Ibid. (Emphasis in original).

The Court first noted that the judicial finding that a defendant is a persistent offender as defined by N.J.S.A. 2C:44-3a does not violate the principles articulated in Blakely or Apprendi. Id. at ___ (slip op. at 10-11); see also State v. Thomas, ___ N.J. ___ (2006) (slip op. at 21) (holding that N.J.S.A. 2C:43-6f, a mandatory extended-term statute, does not contravene a defendant's due process and Sixth Amendment jury trial rights because a sentencing court, and not a jury, makes the determination that a defendant has the statutorily required number and type of prior convictions to be eligible for sentencing up to the maximum of that statute's mandatory enhanced range).

The Court concluded that "the 'need to protect the public' finding does not fit within the limits of the prior-conviction exception recognized in Blakely." Pierce, supra, ___ N.J. ___ (slip op. at 18). The Court explained that such a "determination calls for a finding beyond the pure fact of the prior conviction, and involves the very exercise of judicial discretion." Ibid.

The Court then established the following procedures applicable to sentencing involving a discretionary extended term pursuant to N.J.S.A. 2C:44-3a:

Pursuant to our holding today, once the court finds that those statutory eligibility requirements are met, the maximum sentence to which defendant may be subject, for purposes of Apprendi, is the top of the extended-term range. Stated differently, the range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range. By recognizing that the top of the extended-term range is the "top" applicable to a persistent offender, we do not make mandatory a defendant's sentencing within the enhanced range. Rather, we merely acknowledge that the permissible range has expanded so that it reaches from the bottom of the original-term range to the top of the extended-term range. Where, within that range of sentences, the court chooses to sentence a defendant remains in the sound judgment of the court -- subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found. On appellate review, the court will apply an abuse of discretion standard to the sentencing court's explanation for its sentencing decision within the entire range. Dunbar's reference to a finding of "need to protect the public" is not a precondition to a defendant's eligibility for sentencing up to the top of the discretionary extended-term range.

Moreover, just as we no longer have presumptive sentences as a starting point for a court's sentencing analysis, so too there will not be a presumptive starting point for a court's analysis within the broadened range encompassing the breadth of the original-term range and the available extended-term range. As noted when, in State v. Natale, 184 N.J. 458, 486 (2005), we eliminated presumptive terms from the sentencing process to avoid a Sixth Amendment violation, we expect that courts nonetheless will perform their sentencing function by using the traditional approach of finding and weighing aggravating and mitigating factors and imposing a sentence within the available range of sentences. That determination will be reviewed for reasonableness.

The court may consider the protection of the public when assessing the appropriate length of a defendant's base term as part of the court's finding and weighing of aggravating factors and mitigating factors. The finding is not a necessary condition, however, to the court's determination whether defendant is subject to a sentence up to the top of the extended-term range. Thus, we rid our sentencing practice of any ambiguity suggestive of a Sixth Amendment transgression by means of a remedy that preserves what, we believe, the Legislature would prefer -- keeping the exercise of sentencing discretion in the hands of courts, not juries. See ibid.

[Id. at ___ (slip op. at 20-22); footnote omitted; emphasis in original.]

Recognizing that the trial court had already determined that the defendant met the statutory eligibility criteria for persistent-offender status, the Court ruled, as follows:

Accordingly, we remand defendant for re-sentencing, but only in respect of reconsideration of the appropriate sentence for defendant within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range. The court must reconsider the applicable aggravating and mitigating factors and impose a sentence within the broadened range of sentences available consistent with this opinion.

[Id. at ___ (slip op. at 23).]

Here, because the trial court exercised its discretion in finding the need for the protection of the public, the defendant was not entitled to jury fact-finding on that issue. Id. at ___ (slip op. at 25); see also United States v. Booker, 543 U.S. 220, 234, 125 S. Ct. 738, 750, 160 L. Ed. 2d 621, 643 (2005). Indeed, the finding of the statutory criteria or of a need to protect the public does not require any particular sentence, and the court is always free to deny the State's motion for an extended sentence. Here, having exercised its discretion to impose an extended term, the court sentenced the defendant to the previously-applicable presumptive term sentence of seven years. However, in light of the Court's determination in Pierce, supra, ___ N.J. at ___ (slip op. at 23), expanding the range of sentences from the bottom of the ordinary term (here, three years) to the top of the extended-term range (here, ten years), we are compelled to remand for re-sentencing "but only in respect of reconsideration of the appropriate sentence for defendant within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range." Ibid. In doing so, "defendant may not be subjected to a sentence in excess of the one previously imposed." Id. at ___ (slip op. at 27) (citing Natale, supra, 184 N.J. at 496).

Remanded for re-sentencing in accordance with Pierce. We do not retain jurisdiction.

 

(continued)

(continued)

17

A-0143-04T5

 

August 21, 2006