STATE OF NEW JERSEY v. LISA PITTS-SWINNEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2696-04T42696-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LISA PITTS-SWINNEY,

Defendant-Appellant.

_________________________________

 

Submitted: December 20, 2005 - Decided January 18, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, 03-09-0264.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the brief).

J. Patrick Barnes, Hunterdon County Prosecutor, attorney for respondent (Dawn M. Solari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Lisa Pitts-Swinney was convicted of the lesser-included offense of third-degree aggravated assault causing significant bodily injury. She was sentenced to a five-year custodial term.

On appeal, defendant argues:

POINT ONE

INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

POINT TWO

DEFENDANT'S FIVE YEAR SENTENCE IS UNCONSTITUTIONAL AND ILLEGAL UNDER BLAKELY V. WASHINGTON AS IT EXCEEDS THE PRESUMPTIVE FOUR YEAR TERM SET BY THE LEGISLATURE FOR A THIRD-DEGREE OFFENSE.

We affirm the conviction, and we reverse the sentence, remanding it for reconsideration in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005) (Natale II).

The conviction arose out of an altercation between defendant and Cynthia Stafford, another inmate at the Mahon Correctional Facility, stemming from a dispute as to who was going to use the washing machine first. The inmates were ordered out of the laundry room and went their separate ways. Stafford went into the kitchen common area and sat down with two friends. Defendant walked in and out of the kitchen with a cup of liquid in her hand and repeatedly heated it in the microwave. As defendant passed by Stafford, she muttered threatening comments and called her a "cracker." According to Stafford, defendant then approached her, unprovoked, and threw boiling hot chocolate at her face, causing Stafford's skin to blister and peel. Defendant continued the attack by pulling Stafford out of her chair and throwing her to the ground, kicking her in the eye and hitting her on the back with the chair. Stafford suffered second-degree burns to 7% of her body and spent three days in the St. Barnabas burn unit. The two other inmates seated at the kitchen table corroborated Stafford's version of the events.

Defendant admitted she threw the cup of hot chocolate at Stafford but claimed it was in self-defense as she believed Stafford was coming at her with something in her hand. Defendant also claimed she picked up the chair to protect herself.

We discern no error, let alone plain error in the jury instruction. The trial court utilized the model jury instructions on the offense charged, the lesser-included offenses and the theory of self-defense, and appropriately included facts when warranted. This was a short, uncomplicated trial in which defendant admitted she threw the hot chocolate at Stafford. Defendant provides no specifics as to how she was prejudiced by the jury instruction or what facts should have been integrated into the charge. There is no indication in the record that the jury was confused on the issue of self-defense. The jury's questions went to the grading of the offense, not to defendant's claim of self-defense.

The court found aggravating factors number three and nine and mitigating factor number six. Defendant was sentenced to a five-year term, which is above what was then the presumptive four-year term for a third-degree offense. N.J.S.A. 2C:44-1f(1)(d). The court's imposition of a sentence in excess of the presumptive sentence brings into play our Supreme Court's recent decision in Natale II, which held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." 184 N.J. at 466. The Court further held that to bring the Code of Criminal Justice into compliance with the Sixth Amendment as intended by the Legislature, presumptive terms must be eliminated from the sentencing process. Ibid. Therefore, under Natale II, a trial court is now required to sentence a defendant within the statutory range, after identifying and weighing applicable mitigating and aggravating factors, "without reference to presumptive terms." Ibid. This holding applies to any defendant with a case "on direct appeal as of the date of [the Natale II] decision." Id. at 494. Any such defendant is entitled to "a new sentencing hearing . . . based on the record at the prior sentencing." Id. at 495. "At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96. As defendant's case was on direct appeal to this court when Natale II was decided, defendant is entitled to a new sentencing hearing in which the presumptive statutory term of four years is not considered.

 
Conviction affirmed; reversed and remanded for resentencing.

(continued)

(continued)

5

A-2696-04T4

January 18, 2006