STATE OF NEW JERSEY v. ROBERT J. O'NEILL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5518-04T55518-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT J. O'NEILL,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 9, 2006 - Decided May 24, 2006

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, 00-12-00383-I.

Robert F. O'Neill, appellant pro se.

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Michael W. Briegel, Assistant Prosecutor, of counsel and the brief).

PER CURIAM

Defendant pled guilty to first-degree vehicular homicide while intoxicated within 1,000 feet of school property, N.J.S.A. 2C:11-5a and -5b(3)(a) (Filomena's Law), and was sentenced to sixteen years imprisonment with an 85% parole disqualifier pursuant to N.J.S.A. 2C:43-7.2 (No Early Release Act or NERA). Defendant appealed and we affirmed his Judgment of Conviction, except that we ordered a limited remand for reconsideration of one aspect of defendant's sentence, which was one year above the presumptive term for a first-degree crime. State v. O'Neill, No. A-5709-02T3 (App. Div. February 8, 2005) (slip op. at 15-16). We circumscribed the scope of the remand as follows:

We see no basis for concluding that mitigating factors predominate over the aggravating factors identified by the sentencing judge. Nonetheless, as the goal of general deterrence was also reflected in the judge's statement of reasons, we believe it appropriate to remand solely for consideration of whether specific deterrence and risk of re-offense alone warrant elevation of the term of imprisonment above the presumptive fifteen years provided by statute.

[Ibid.]

Judge Conforti conducted the remand hearing on April 26, 2005. After hearing argument from both attorneys and giving further consideration to the matter, he found that this case presented a specific need for deterrence as to this defendant because of his long-term history of abusing alcoholic beverages and having been the subject of other motor vehicle related convictions involving alcohol abuse. The judge therefore concluded that the aggravating factors, including the specific need for deterrence and the risk of re-offense, outweighed the mitigating factors, thus justifying imposition of a sentence one year above the presumptive level. He therefore entered an order reaffirming the sentence previously imposed.

Defendant appeals from that order and presents these arguments:

POINT ONE

THE IMPOSITION OF A SENTENCE BEYOND THE PRESUMPTIVE TERM UNSUPPORTED BY RECIDIVIST BASED FACTORS IS ILLEGAL AND VIOLATES THE BLAKELY V. WASHINGTON SUPREME COURT HOLDING.

POINT TWO

THE IMPOSITION OF A N.E.R.A. SENTENCE FOR A CRIME OCCURRING PRIOR TO THE 2001 N.E.R.A. IS PATENTLY ILLEGAL, AND THUS VIOLATES THE DUE PROCESS AND EX POST FACTO CLAUSE OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND NEW JERSEY CONSTITUTION.

With respect to Point One, we first observe that Judge Conforti complied with the direction in our limited remand, and his findings regarding the need for specific deterrence are well supported by the record and were clearly articulated. We have no occasion to interfere with those findings. However, during the pendency of this appeal, our Supreme Court issued its decision in State v. Natale, 184 N.J. 458 (2005). In accordance with that decision, the State concedes and we agree that a further remand is required for further reconsideration of defendant's above-presumptive sentence in accordance with the Natale principles.

The arguments presented in Point Two lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We note that much of the argument presented under this point was previously presented and rejected in the earlier appeal. We note further that NERA clearly applies to Filomena's Law. State v. Jarrells, 181 N.J. 538 (2004); State v. Wade, 169 N.J. 302 (2001).

The matter is remanded for resentencing in accordance with State v. Natale.

 

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A-5518-04T5

May 24, 2006