STATE OF NEW JERSEY v. DONNIE SPEARMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1342-03T41342-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

DONNIE SPEARMAN,

Defendant-Appellant.

__________________________________

 

Submitted: March 20, 2006 - Decided April 4, 2006

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-03-0370.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Michael M. Rubbinaccio, Morris County Prosecutor, attorney for respondent (Joseph Connor, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Donnie Spearman was convicted of third degree escape and sentenced to an extended term of seven years. The appropriate fines, penalties and assessments were also imposed.

On appeal, defendant raises the following points:

POINT I THERE WAS INSUFFICIENT EVIDENCE TO SUSTAIN DEFENDANT'S ESCAPE CONVICTION (Plain Error)

POINT II THE TRIAL COURT'S JURY CHARGES WERE INSUFFICIENT (Plain Error)

POINT III THE TRIAL COURT ERRED IN PERMITTING HEARSAY STATEMENTS INTO EVIDENCE

POINT IV THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL (Plain Error)

POINT V THE SENTENCE IMPOSED BY THE TRIAL COURT IS IMPROPER AND SHOULD BE REMANDED TO THE TRIAL COURT PURSUANT TO STATE V. NATALE

POINT VI THE SENTENCE IMPOSED BY THE TRIAL COURT IS EXCESSIVE

We have reviewed the record in its entirety based on the arguments presented by defendant and determine that none of the arguments pertaining to the conviction are of sufficient merit warrant discussion in a written opinion. R. 2:11-3(e)(2).

Defendant also contends that the sentence imposed is improper and must be remanded for reconsideration in light of State v. Natale, 184 N.J. 458 (2005) (Natale II). He also argues that the term imposed is excessive. We disagree and affirm the sentence.

In Natale II, the Court stated that, under our Code of Criminal Justice, "before any judicial factfinding, the maximum sentence that can be imposed based on a jury verdict or guilty plea is the presumptive term," and therefore, "the 'statutory maximum' for Blakely [v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)] and [United States v.] Booker[, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)] purposes is the presumptive sentence." Natale II, supra, 184 N.J. at 484. Accordingly, the Court "eliminat[ed] the presumptive terms" creating the "'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea [as] the top of the sentencing range for the crime charged. . . ." Id. at 487.

Here, the trial judge imposed a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The criteria for this sentence require a finding that defendant was over the age of twenty-one at the time of the commission of the current offense and was at least eighteen years of age when he committed two separate crimes of the first, second or third degree and that the latest offense or defendant's last release from jail or prison is within ten years of the current offense. N.J.S.A. 2C:44-3a. Therefore, the determination of whether to impose an extended term depends solely on a defendant's prior criminal record. Only the imposition of a sentence that depends on judicial factfinding beyond the prior criminal record offends a defendant's Sixth Amendment jury trial guarantee. Natale II, supra, 184 N.J. at 482, 489-90; State v. Drew, 383 N.J. Super. 185, ___ (App. Div. 2006) (slip op. at 20-22) (persistent offender extended term with a presumptive base term does not implicate defendant's Sixth Amendment right to jury trial). See also State v. Pagan, 378 N.J. Super. 549, 558 (App. Div. 2005) (extended term as a repeat drug offender falls within the Blakely prior criminal record exception). The extended term imposed here was guided solely by defendant's prior record. Moreover, the base extended term did not exceed the seven-year presumptive term for a second degree offense. The sentence does not depend on any judicial findings beyond defendant's prior record; therefore, it is not constitutionally infirm.

We also do not find the term manifestly excessive. The judge performed the multi-step analysis required by State v. Dunbar, 108 N.J. 80, 88-89 (1987). The factors considered are well-supported by the record, the term imposed is within the range authorized by statute, and there is no discernible misuse of the discretion afforded to the trial judge. At sentencing, defendant had been convicted on seven prior occasions. In all but one instance he had served time in prison. The record suggests that the term imposed was a measured response to defendant's disregard for the law throughout his adult life rather than a misuse of the trial judge's discretion. The sentence is, therefore, affirmed.

Affirmed.

 

Defendant was released from prison on January 28, 2005. The appeal is not moot because he remains on parole until April 13, 2008.

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A-1342-03T4

April 4, 2006