STATE OF NEW JERSEY v. JOANN SATORIUS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2732-04T42732-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOANN SATORIUS,

Defendant-Appellant.

___________________________________________________________

 

Submitted June 6, 2006 - Decided August 10, 2006

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 03-10-1255-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief).

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Joann Satorius, pled guilty to two counts of second degree robbery involving two banks. She was sentenced to an extended term of fifteen years on both counts, concurrent to each other, with an eighty-five percent parole disqualifier and three years of parole supervision when she is released.

On this appeal, defendant makes the following assertions of error:

POINT I: THE SENTENCE IS ILLEGAL INSOFAR AS IT IMPOSES TWO DISCRETIONARY EXTENDED TERMS. (NOT RAISED BELOW).

POINT II: THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO HAVE A JURY DETERMINE ALL OF THE ELEMENTS OF THE CRIME WAS VIOLATED WHEN SHE WAS SENTENCED TO AN EXTENDED TERM BASED UPON THE TRIAL COURT'S IMPLICIT FACT FINDING THAT THERE WAS A NEED TO PROTECT THE PUBLIC. (NOT RAISED BELOW).

POINT III: THERE WAS NO FACTUAL BASIS FOR THE TRIAL COURT'S IMPLICIT FINDING THAT A DISCRETIONARY EXTENDED TERM WAS "NECESSARY FOR THE PROTECTION OF THE PUBLIC" AND THE IMPOSITION OF A FIFTEEN-YEAR SENTENCE WAS IN VIOLATION OF THE DUNBAR REQUIREMENT THAT THE PRIMARY FOCUS SHOULD BE ON THE SERIOUSNESS OF THE OFFENSE.

A. The imposition of an extended term was improper.

B. In imposing a fifteen year sentence for this crime, the trial court utterly ignored Dunbar's mandate the primary focus should be on the nature of the offense.

The State agrees that defendant could not be sentenced to more than one discretionary extended term pursuant to N.J.S.A. 2C:44-5a(2). We, therefore, remand for one of the extended terms to be vacated. As to defendant's remaining arguments, we find them to be without merit to require reversal or remand.

On July 22, 2003, defendant and a friend robbed two banks in Ocean County by presenting notes to the respective bank tellers that demanded money. Two days later, defendant and her friend were apprehended and charged with two counts of second degree robbery. At the time of the two robberies, defendant was on parole from prison for a prior bank robbery.

Defendant was charged with two counts of second degree robbery, N.J.S.A. 2C:15-1. As part of a plea bargain, defendant pled guilty to both counts in exchange for the State agreeing to recommend concurrent sentences. The State also advised defendant that it would seek an extended term of ten to twenty years incarceration with an eighty-five percent parole disqualifier in accordance with the No Early Release Act (NERA). The court would then decide the appropriate term of incarceration.

At the sentencing hearing, the court found defendant to be extended-term eligible and that she was a persistent offender with sixteen superior and municipal court prior convictions by age thirty-five, including one for robbery in 1999. Defendant was then sentenced in accordance with the plea agreement to an extended term of fifteen years in state prison on both counts, concurrent to each other but consecutive to the sentence she was then serving on a violation of parole, with an eighty-five percent period of parole ineligibility and five years of parole supervision upon release.

Defendant filed, pro se, a notice of motion to correct an illegal sentence under R. 3:22-12(a), based on Blakely v. Washington, 542 U.S. 296 (2004). After an excessive sentencing oral argument, we remanded the matter for further analysis by the trial court because the imposition of a discretionary extended term was not supported by adequate analysis. We also amended the judgment of conviction (JOC) to reflect a three-year period of parole supervision rather than five years, pursuant to N.J.S.A. 2C:43-7.2c (NERA).

The trial court amended defendant's judgment to reflect a three-year period of parole supervision upon release, instead of the five-year period of parole supervision originally imposed. The court also considered and denied a motion to correct illegal sentence pursuant to R. 3:22-12(a), filed by defendant, which argued that the persistent offender statute, N.J.S.A. 2C:44-3a, violated her Sixth Amendment right to have a jury determine any fact which would increase her sentence. The court gave additional reasons for imposing an extended term, but it did not reduce defendant's sentence. Defendant again appealed the sentence on an excessive sentencing oral argument calendar, and we ordered full briefing on a regular calendar.

Defendant argues that the imposition of a discretionary extended term was an abuse of discretion and violative of Blakely v. Washington, 52 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159 L. Ed. 2d 857 (2004). We disagree.

Here, the plea agreement established defendant's eligibility for an extended term sentence and the State's right to move for one. See N.J.S.A. 2C:44-3a. The court granted that motion. Moreover, the judicial factfinding respecting a defendant's eligibility for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, does not violate Blakely because it is predicated on defendant's prior record. State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005); State v. McMillan, 373 N.J. Super. 27, 28 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005); State v. Dixon, 346 N.J. Super. 126, 140-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002).

Here, the judge imposed an extended term based solely on defendant's prior record. In 1999, defendant was convicted of robbing a bank and sentenced to seven years in prison. She was also convicted for possession of a controlled dangerous substance (CDS) in 1999, for which she was sentenced to four years concurrent to the seven-year sentence she was already serving for bank robbery. She also had a violation of parole for possession of a hypodermic needle in 1997, receiving stolen property and theft in 1995. In addition, defendant has numerous municipal convictions for shopliftings, criminal mischief, obstruction of justice and wrongful impersonation. Defendant had twenty-three prior arrests and sixteen convictions when she was before the trial court for sentencing. In addition, she had three violations of probation and one violation of parole. The trial court stated:

[S]he has multiple theft type of offenses and a prior robbery to which she was sentenced to seven years. She was undeterred by that seven-year sentence that she received in 1999 and in less than two short years from her being placed on parole she's involved in this series of robberies. . . . this represents the sixth and seventh indictable convictions in her prior criminal history in addition to eleven disorderly persons convictions. She's only thirty-five years of age. Taking all of those factors into consideration the court is, in fact, convinced that the presumptive term of incarceration for the robberies on the extended term is appropriate.

. . . .

In this court's view, the defendant has shown a trend in her persistence of her violations of the law towards more dangerous criminal activity. Robbing a bank is certainly different than stealing money or property from a family member. She was robbing banks. For these reasons, despite the fact that she served a prison term and is on parole for robbery, when she got back involved in criminal activity she kicked it up a notch.

For these reasons . . . the extended term analysis was made. She presents a danger to the community, not in the classic sense of a violent criminal, but if you look at the progression of her prior criminal history as an adult from the start to the present offense, there is a crescendo of rising of the level of the seriousness of the offense. And I think it's a fair inference . . . to conclude that without deterrence directly designed to deter this defendant it's not a stretch to say that the next robbery she'd be involved in would be a first degree armed robbery. We're moving in that direction, or that persons even in an unarmed robbery, a strong-arm robbery of a bank when there's no weapon creates circumstances that present a danger to the community because the bank personnel may react in a certain way, customers in a bank could react in a certain way. These are all unknown factors.

"Considering the relative weight, severity, and similarity of the prior offenses," we find no fault with the trial judge's decision to impose the sentence as a persistent offender. State v. Dunbar, 108 N.J. 80, 96 (1987).

Finally, we address defendant's argument concerning the length of the extended term sentence. Although the range of sentence under the extended term statute is ten to twenty years, N.J.S.A. 2C:43-7a(3), the judge imposed an extended term of the then presumptive term, fifteen years. When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court may review and modify a sentence when the trial court's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).

After determining whether the minimum statutory predicates exist to subject a defendant to an extended term and to impose such a term, as here, the judge must then "weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence." Dunbar, supra, 108 N.J. at 89. Prior to the decisions in State v. Natale, 184 N.J. 458 (2005), (Natale II), and State v. Abdullah, 184 N.J. 497 (2005), a second degree extended sentence had a presumptive term of fifteen years imprisonment. N.J.S.A. 2C:44-1(f)(1)); N.J.S.A. 2C:43-7a(3). An extended term sentence could have been shorter or longer than the presumptive term based on the court's weighing of the aggravating and mitigating factors, N.J.S.A. 2C:44-1(a) and (b); N.J.S.A. 2C:44-1(f).

Here, the judge balanced the aggravating factors, N.J.S.A. 2C:44-1(a)(3) (risk of committing another offense), (6) (prior criminal record), (9) (need to deter), and (11) (cost of doing business), against the slight application of mitigating factor N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his/her conduct would cause or threaten serious harm), and imposed the then presumptive term. We observe that it was improper for the judge to utilize aggravating factor (11) since defendant was going to be sentenced to a custodial term. See State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd, 175 N.J. 612 (2003) (holding factor (11) to be "[in]applicable unless the sentencing judge is balancing a non-custodial term as against a state prison sentence"). We find this, however, to be harmless error. R. 2:10-2.

On balance, we find no abuse of the judge's discretion in fixing an extended term of fifteen years with an eighty-five percent parole disqualifier under NERA. Accordingly, we affirm.

Remanded for vacation of second extended sentence; affirmed in all other respects.

 

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A-2732-04T4

August 10, 2006