STATE OF NEW JERSEY v. JENNIFER SUZANNE CEBULA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1253-05T41253-05T4

A-2438-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JENNIFER SUZANNE CEBULA,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 24, 2006 - Decided December 6, 2006

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 94-10-1694-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

These are the consolidated appeals of defendant, Jennifer Suzanne Cebula, from her July 29, 1996 judgment of conviction and from the September 19, 2005 order denying her petition for post-conviction relief (PCR). On appeal, defendant argues:

POINT I

THE COURT ABUSED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF AND THE MATTER SHOULD BE REMANDED FOR A RESENTENCING BECAUSE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AT SENTENCING.

POINT II

THE AGGREGATE CUSTODIAL SENTENCE OF LIFE IMPRISONMENT PLUS TWENTY (20) YEARS WITH FORTY (40) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(A)

IMPOSITION OF SENTENCES IN EXCESS OF THE THEN-EXISTING PRESUMPTIVE SEVEN (7) YEAR SENTENCES FOR CRIMES OF THE SECOND DEGREE ON THE DEFENDANT'S CONVICTIONS FOR ENDANGERING THE WELFARE OF A CHILD ON COUNTS TWO AND THREE VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(B)

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING CONSECUTIVE SENTENCES ON COUNTS TWO AND THREE.

We reject these arguments and affirm both orders under review.

On February 23, 1994, defendant lived in a household with her paramour, his two sons, five-year-old S.M. and six-year-old R.M., and defendant's daughter, three-year-old A.P. On that evening, defendant was home alone with the three children. Dissatisfied with the children's behavior, she tied up S.M.'s hands and ankles. She mixed a food concoction, including as ingredients, ketchup, pickles, and cat litter. She force fed the concoction to S.M., placing an item of clothing over his mouth to prevent him from rejecting it. She did this in the presence of the other two children. Indeed, she asked R.M. if he wanted to kill his brother and induced him to assist her in force feeding S.M. She continued this until S.M. fell unconscious. After about twenty minutes, she placed the bound S.M. face down in the bathtub, ran water over him until it was four to six inches deep, and left him there for about twenty minutes. In confessing to the murder of S.M., defendant acknowledged it was her intention to kill him. She said "she never killed anybody before and she wanted to see what it was like."

A Monmouth County grand jury indicted defendant for (1) first-degree knowing or purposeful murder of S.M. by her own conduct, N.J.S.A. 2C:11-3a and c; (2) second-degree endangering the welfare of a child, R.M., N.J.S.A. 2C:24-4a; and (3) second-degree endangering the welfare of a child, A.P., N.J.S.A. 2C:24-4a. With respect to count one, the State sought imposition of the death penalty, and filed as an aggravating factor that "[t]he murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated assault to the victim." N.J.S.A. 2C:11-3c(4)(c).

In accordance with its standing policy in capital cases, the Office of the Public Defender assigned two attorneys to represent defendant. At least one of them had substantial prior experience in handling capital cases. The attorneys caused an extensive investigation to be conducted to compile mitigating evidence. This included a thorough assessment of mental health issues. Defendant had a mental health history dating back about eleven years, to age thirteen. Counsel obtained all of her prior mental health records. They engaged the services of mental health experts, including one psychiatrist and three psychologists. Based upon evaluations of defendant and review of the mental health records, none of these mental health professionals were able to provide an opinion that would constitute an insanity or diminished capacity defense. They did render reports, however, regarding defendant's mental deficiencies and expressed a willingness to testify at a penalty phase trial, should one occur, to provide mitigating evidence if a jury convicted defendant of capital murder.

Although the defense was not required to deliver to the State discovery regarding its mitigating evidence before a capital verdict, see R. 3:13-4(b), defense counsel determined, after consultation with defendant, and after being assured by the prosecutor that the materials would be considered as a possible basis to withdraw the capital aggravating factor, to turn over the discovery to the prosecutor and attempt to negotiate a non-death plea agreement. Defense counsel were successful in their effort. A plea agreement was reached, by which the State conditionally withdrew the aggravating factor, in exchange for which defendant agreed to plead guilty to all three counts, with a recommendation that she receive the maximum non-capital sentence, namely life imprisonment with a thirty-year parole disqualifier for murder and consecutive terms of ten years imprisonment with a five-year parole disqualifier on each of the endangering counts, resulting in an aggregate term of life plus twenty years, with a forty-year parole disqualifier.

On June 14, 1996, Judge Chaiet conducted a hearing to consider the plea. He acknowledged that he had received in advance the two-volume set of mitigation materials, estimated to be several hundred pages long. When addressing the defendant, the judge said, "I have also reviewed all of the mitigating factors in this case. So it's not like you and I are starting from scratch and I don't know anything about you." It was clear from the plea agreement and the plea colloquy that although the judge clearly had the discretion to impose an aggregate sentence less than that recommended in the plea agreement, defendant was aware of the recommended maximum sentence and was prepared to accept it, and the judge made clear that he would probably impose it.

On July 29, 1996, Judge Chaiet imposed sentence. Defense counsel advised the court that after consultation with defendant and review with her of the presentence report, they stood by the plea agreement. Counsel made no arguments for a sentence less than that recommended in the plea agreement.

The judge made detailed findings regarding aggravating and mitigating factors. He found four aggravating factors applicable, namely, the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1), the gravity and seriousness of the harm inflicted on the victims, N.J.S.A. 2C:44-1a(2), the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3), and the need for deterrence, N.J.S.A. 2C:44-1a(9). By way of mitigation, the judge found two factors applicable, namely, that there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1b(4), and lack of a prior history of delinquency or criminal activity, N.J.S.A. 2C:44-1b(7). The judge specifically discussed defendant's social and psychiatric difficulties and discussed at length defendant's mental health history, as revealed in the previously-furnished mitigation discovery and as extensively summarized in the presentence report. The judge gave weight to mitigating factor (4). He nevertheless was clearly convinced that the aggravating factors substantially outweighed the mitigating factors. Based upon those findings, he imposed the recommended sentence.

Defendant did not file a timely appeal. About six-and-one-half years after her conviction, on January 13, 2003, defendant filed her first PCR petition, which was later dismissed without prejudice. On September 27, 2004, she filed a second PCR petition, which was also dismissed without prejudice. On February 15, 2005, she filed her third PCR petition. On July 11, 2005, assigned counsel filed a brief in support of the petition.

Counsel argued that defendant was deprived of the effective assistance of counsel at her sentencing proceeding because her attorneys failed to present the testimony of mental health experts. The contention was that with such testimony, the judge might have given less weight to the aggravating factors and more weight to mitigating factor (4) and imposed a lesser sentence. PCR counsel also argued that defense counsel were deficient for not arguing for a lower sentence.

PCR counsel further argued that the above-presumptive sentences imposed on the endangering counts, without factfinding of aggravating factors by the jury, was impermissible under the United States Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and the decision of this court in State v. Natale, 373 N.J. Super. 226 (App. Div. 2004).

Judge Chaiet initially determined that the PCR petition, initially filed more than five years after the conviction, was time-barred under Rule 3:22-12(a), and procedurally barred under Rules 3:22-3 and -4. The judge nevertheless addressed and decided the petition on the merits.

He rejected the first argument, finding that neither prong of the Strickland/Fritz test was satisfied. The judge found that, because he was thoroughly conversant with defendant's mental health information from the documentary evidence submitted, trial counsel were not deficient for failing to present witnesses to present it. And, he found that even if such testimony would have been presented or any arguments would have been made for a lower sentence, the result would have been no different, because he was firmly convinced that the sentence imposed was the appropriate sentence in light of defendant's heinous crimes against three young and vulnerable victims. Further, because all of the evidence necessary to decide the issue was in the record, the judge denied defendant's request for an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 460 (1992).

Based upon our careful review of the record, we agree with Judge Chaiet's disposition of defendant's first PCR argument. Defendant's arguments raised on appeal regarding that argument lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

After PCR counsel filed his brief on July 11, 2005, but before the PCR hearing on September 16, 2005, our Supreme Court, on August 2, 2005, decided State v. Natale, 184 N.J. 458 (2005). The Court determined that presumptive terms must be removed from the sentencing scheme in New Jersey's Criminal Code to bring the Code into compliance with the Sixth Amendment. Id. at 466. The Court gave "pipeline" retroactivity to its decision, applying it to "defendants with cases on direct appeal as of the date of this decision and to those defendant's who raised Blakely claims at trial or on direct appeal." Id. at 494. For those cases in the pipeline, a new sentencing hearing would be required, at which the trial court, based on the record at the prior sentencing, "must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

Thus, at the time of the PCR hearing, Judge Chaiet and counsel were aware of the Supreme Court's Natale holding. However, at the time of that hearing, defendant had not filed a direct appeal of her 1996 conviction. Therefore, her case was not then "in the pipeline" for Natale purposes.

At the PCR hearing, Judge Chaiet addressed the Natale issue. He first determined that because the case before him was not in the pipeline, Natale was inapplicable. He then determined that the Natale rule had no applicability to murder or to parole disqualifiers or consecutive sentences. We agree. See State v. Abdullah, 184 N.J. 497, 499 (2005) (concluding "that the powers given to a judge by the Code to sentence a defendant to a period of life imprisonment for murder, to a period of parole disqualification pursuant to N.J.S.A. 2C:43-6(b), and to consecutive sentences for multiple convictions do not run counter to the Sixth Amendment").

With respect to the above-presumptive base terms on each of the endangering counts, the judge concluded that even if the Natale holding applied and if he were considering the matter anew for resentencing based upon the record at the prior sentencing, he would impose the same sentences. He said this:

Now, in elimina[ting] the presumptive, and I guess for the endangering the welfare of a child, under our prior sentencing scheme, it was a ten-year sentence with a five-year minimum with a presumptive seven-year sentence. Now, under NATALE, the presumptive sentence is no longer something that the Court could use.

I was looking at the aggravating and mitigating factors in this particular case where I originally sentenced defendant. I was looking at the fact of what had been set forth in the plea agreement in this particular case. And because the weight of the aggravating factors over the mitigating and the Court finding that the aggravating substantially outweighed the mitigating in this particular case, were that sentence to come back to me today, I would do exactly the same thing as I did in July of 1996.

I feel that the sentences were appropriate and there was no mention of the presumptive sentence anywhere in my sentencing to my knowledge. I reviewed it. I didn't see it. Recognize. So what I'm saying is whether there was a presumptive or whether there was not, it would not have impacted on my sentence in this particular case. It would be the same today as it was then.

I also point out that this was a plea agreement. And defense counsel cannot argue that defendant did not know the full parameters of what she faced. It was not the same situations as going into a jury trial, being convicted of say, endangering the welfare of a child, and under our old law then by that jury verdict, the presumptive sentence was seven years. And the cases say, well, you really can't go out above that unless the jury made certain factual findings.

In this particular case, she knew through the plea what she was facing. The Court found four aggravating factors in sentencing her. She was very well aware that when she came before the Court on July 29th back in 1996 that she was going to get a life plus 20 with 40 years of parole ineligibility. That's what she bargained for. That was appropriate under all of the circumstances of this particular case.

Accordingly, the judge rejected defendant's sentencing arguments in the PCR proceeding and denied in its entirety defendant's PCR petition.

Defendant appealed denial of her PCR petition. She also moved before this court for leave to file a notice of appeal nunc pro tunc for her 1996 conviction. We granted that motion on February 8, 2006. Thus, defendant's appeal is deemed to have been timely filed within forty-five days after her conviction, and was thus placed in the pipeline for Natale purposes retroactive to that time.

Because of the direct appeal of defendant's sentence, we consider her sentencing arguments. Based upon our careful review of the record, we are satisfied that Judge Chaiet's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record, that he did not apply incorrectly the sentencing guidelines enunciated in the Code, and that the sentences imposed are not manifestly excessive or unduly punitive and do not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984). We are also satisfied that the judge appropriately exercised his discretion and followed the guidelines in imposing consecutive sentences, as set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), as amended by N.J.S.A. 2C:44-5a, and State v. Louis, 117 N.J. 250 (1989).

Finally, although the case is in the pipeline for Natale purposes and would ordinarily require a remand for resentencing on the endangering counts in accordance with the Natale principles, we find such a remand unwarranted in the circumstances of this case. In the PCR proceeding, defense counsel fully briefed the Blakely issue, and at the time of the hearing, the Supreme Court's Natale decision had been rendered. Judge Chaiet, although determining that because of the procedural posture at that time, Natale did not apply, nevertheless made an alternate determination as though it did apply. He fully addressed the issue on the merits. Defendant's rights, as articulated in Natale, were fully protected. There is nothing to be gained by remanding the matter for reconsideration of an issue that has been fully considered and decided on the merits.

The judge reconsidered the endangering counts without consideration of any presumptive term and concluded the maximum sentences with maximum parole disqualifiers were appropriate. His findings on aggravating and mitigating factors support that conclusion. His conclusion was further supported by his recognition that this was a plea agreement recommending a specified sentence, which falls within an exception to the Natale principles. See State v. Anderson, 374 N.J. Super. 419, 424 (App. Div. 2005), cited with approval, Natale, supra, 184 N.J. at 495 n. 12.

Affirmed.

 

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

(continued)

(continued)

14

A-1253-05T4

RECORD IMPOUNDED

December 6, 2006