STATE OF NEW JERSEY v. NORMAN REID

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5538-03T45538-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NORMAN REID,

Defendant-Appellant.

__________________________________________________

 
Argued on the June 1, 2006 Sentence Oral

Argument Calendar - Decided June 19, 2006

Before Judges Stern and King.

On appeal from the Superior Court of New

Jersey, Law Division, Ocean County,

Indictment No. 96-11-1122.

Alyssa A. Aiello, Assistant Deputy Public

Defender, argued the cause for appellant.

Samuel J. Marzarella, Assistant Ocean County

Prosecutor, argued the cause for respondent.

PER CURIAM

This appeal is before us following the November 10, 2005 proceedings at which the Law Division, following a remand under State v. Natale, 184 N.J. 458 (2005), adhered to the original sentence imposed on March 21, 1997. At that time, defendant was sentenced to life imprisonment with twenty-five years to be served before parole eligibility following his conviction for aggravated manslaughter as a lesser included offense to murder. He also received a sentence of ten years with five years to be served before parole eligibility following his guilty plea to the severed charge of possessing a weapon as a convicted felon. That sentence was imposed to be served consecutively to the sentence for aggravated manslaughter, so that defendant's aggregate sentence was life plus ten years with thirty years to be served before parole eligibility. The convictions for the charges of unlawful possession of a handgun and possession of a handgun for unlawful purposes were merged into the other convictions.

In our opinion of July 1, 1999, we affirmed defendant's convictions but remanded for resentencing. We said:

Although we affirm the convictions, resentencing is called for. The sentence imposed on defendant consisted of two maximum terms with maximum periods of parole ineligibility. In imposing these terms, the trial judge several times stated that a life sentence was the presumptive extended term for the aggravated manslaughter conviction. This was incorrect. N.J.S.A. 2C:43-7a(1) provides that an extended sentence for that crime is to range between thirty years and life imprisonment. While we do not view the judge's weighing of aggravating and mitigating factors to have been erroneous, and discern no shortcomings in his other discretionary evaluations and determinations, we are constrained to remand for resentencing because of the effect the mistaken premise may have had upon the judge's choices of base terms and periods of parole ineligibility.

Following our remand, defendant was re-sentenced on December 8, 2000. The matter was treated as a "motion for reconsideration." At that time it was pointed out to the trial judge that the extended term for aggravated manslaughter, in fact, carries a presumptive sentence of life imprisonment under N.J.S.A. 2C:44-1f(1), although we had denied reconsideration and apparently no petition for certification was filed by the State.

On December 8, 2000, the trial judge reimposed the sentence of life imprisonment, indicating that at the time of the original sentence he indicated he would do so irrespective of any "presumptive term." He also imposed the same consecutive sentence for the convicted felon offense. Defendant again appealed.

An appeal from the December 8, 2000 resentencing was pending before this court when State v. Natale, 184 N.J. 458 (2005), was decided. As a result of the appeal from reimposition of a de novo sentence following our 1999 remand, Natale applies to this case "on direct appeal as of the date" Natale was decided, and "a new sentencing hearing" was required. Id. at 494-95.

Accordingly, on September 22, 2005, we remanded the matter for resentencing in light of Natale. That resentencing occurred on November 10, 2005. As the original trial judge had retired, a new judge handled the resentencing, and again adhered to the original sentence imposed on defendant in 1997. Defendant now appeals from that sentence.

Pursuant to Natale, at the remand hearing:

[T]he trial court [had to] determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Id. at 495-96.]

The remand judge carefully reviewed the record which, among things, revealed the consideration of the presumptive sentence under N.J.S.A. 2C:44-1f and that the original sentencing judge found that the aggravating factors outweighed the non-existent mitigating factors and considered the Dunbar criteria for imposition of an extended term. See State v. Dunbar, 108 N.J. 80 (1987). The remand judge then noted:

The [original sentencing judge] then went on to articulate the aggravating factors, found aggravating factor three, the risk the defendant would commit another offense; aggravating factor six, mindful that the prior record would not be given the same qualitative weight. In fact, the Court gave it minor weight but articulated under Dunbar it could assess the defendant [] as [an] individual in terms of past behavior, performances on Probation, particularly in this case as a juvenile. The Court noted parenthetically that in its experience it was probably one of the longest juvenile records the Court had experienced with involvement in the criminal justice system of this defendant dating back to nine years of age. The Court noted the incarcerations of Mr. Reid as a juvenile as well as four incarcerations for prior adult offenses. The Court went on and gave, quote, "very heavy weight," unquote, to each of those aggravating factors and noted the defendant was only out a matter of months from State Prison when he committed the homicide offense in the case at hand. The Court noted prior prison sentences and violations of Probation failed to deter Mr. Reid and made a determination that the defendant posed a threat to the public under the circumstances.

Finally the record revealed that the [original judge] weighed and considered the intent of the Legislature with respect to the offenses such as knowing and purposeful murder which could impose life with no parole for thirty. That coupled with the intent of the Graves Act as a weapon was involved was also considered and factored in by the Court.

The court also referred to the basis for the consecutive sentence of ten years with five years before parole eligibility for the conviction of possession of a weapon by a convicted felon, and concluded:

Based on the directives under Natale it is this Court's finding that a review of the record before the Trial Court who sentenced Mr. Reid and without disturbing the quantitative or qualitative findings by the Trial Court of the aggravating and mitigating factors, the absence of the presumptive term in the weighing process does not require the imposition of a different sentence. A fair reading of the record indicates that [the judge's] sentence was not based upon the fact that it was the presumptive term but rather that the maximum sentence after weighing the aggravating and mitigating factors militated in favor of the sentence which was eventually handed down.

So, accordingly, the sentence of the Trial Court as articulated by [the original judge] will be reimposed. An Order will be prepared -- amended Judgment will be prepared accordingly.

On this appeal we must recognize the scope of review addressed in Natale:

Although judges will continue to balance the aggravating and mitigating factors, they will no longer be required to do so from the fixed point of a statutory presumptive. We suspect that many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence. That would be one reasonable approach, but it is not compelled. Although no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range. In the past, defendants with long criminal records have been sentenced toward the upper part of the sentencing range. They should not anticipate a departure from that practice with the presumptive terms gone.

As always, every judge must "state on the record" how he or she arrived at a particular sentence. N.J.S.A. 2C:43-2(e); see also R. 3:21-4(g) ("[T]he judge shall state reasons for imposing [a] sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence."). We are confident that the judge's obligation to justify the sentence by referencing the mitigating and aggravating factors will continue to bring rationality to the process and minimize disparate sentencing.

The touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court. As before, trial judge still must identify the aggravating and mitigating factors and balance them to arrive at a fair sentence. See [State v.]Hodge, [], 95 N.J. [369], 379-80, 471 A.2d 389 [(1984)]. Because we expect that judges will perform their duties conscientiously, we do not foresee a major change in sentencing patterns as a result of the removal of presumptive terms.

Under today's holding, appellate courts will continue to play "a central role" in carrying out the Code's goals of "promoting uniformity and consistency" in sentencing. State v. Jarbath, 114 N.J. 394, 400, 555 A.2d 559 (1989). Sentencing decisions will continue to be reviewed under our established appellate sentencing jurisprudence. Appellate courts must determine whether the sentencing court followed the applicable sentencing guidelines. [State v.]Roth, 95 N.J. [334,] 364-65, 471 A.2d 370 [(1984)].

As we recently explained in [State v.] Evers, [] "when reviewing a trial court's sentencing decision, '[a]n appellate court may not substitute its judgment for that of the trial court.'" 175 N.J. [355,] 386, 815 A.2d 432 [(2003)] (quoting State v. Johnson, 118 N.J. 10, 15, 570 A.2d 395 (1990)); see also Roth, supra, 95 N.J. at 365, 471 A.2d 370. Our "appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts." Jarbath, supra, 114 N.J. at 401, 555 A.2d 559. However, they are "bound to affirm a sentence, even if [they] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215, 564 A.2d 1202 (1989); see also Roth, supra, 95 N.J. at 364-65, 471 A.2d 370 (holding that appellate court may not overturn sentence unless "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience").

[Natale, supra, 184 N.J. at 488-89.]

We recognize that the sentence under review gives deference to the original sentencing court, but it also complied with the dictates and principles of Natale. The judge noted, as did the original resentencing judge in 1997, that the presumptive term was not dispositive. We also recognize that a sentence of life imprisonment with twenty-five years before parole eligibility for aggravated manslaughter is not that different than the mandatory sentence of thirty years to life, with thirty years before parole eligibility for murder. N.J.S.A. 2C:11-3b(1). But the sentence is premised on defendant's record as well as his conduct. See N.J.S.A. 2C:43-7a(1); Dunbar, supra, 108 N.J. at 94-95; State v. Candelaria, 311 N.J. Super. 437, 452 (App. Div.), certif. denied, 155 N.J. 587 (1998). Moreover, having imposed a sentence of life imprisonment and determined that a parole ineligibility term was warranted, the parole ineligibility term had to be twenty-five years. N.J.S.A. 2C:43-76; State v. Pennington, 154 N.J. 344, 360 (1998); Candelaria, supra, 311 N.J. Super. at 452.

The judgment of conviction and sentence are affirmed.

 

On June 28, 2004, we granted leave nunc pro tunc to consider the sentence imposed at the December 8, 2000 sentencing. There was no objection to the nunc pro tunc application. For that reason the matter was still pending when State v. Natale was decided by the Supreme Court on August 2, 2005.

By age twenty-three, at the time of this offense, defendant had been convicted of four indictable transactions and sentenced to prison twice. There is no suggestion that he did not qualify as a persistent offender under N.J.S.A. 2C:44-3a, resulting in the sentence under N.J.S.A. 2C:43-7a(1).

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A-5538-03T4

June 19, 2006