STATE OF NEW JERSEY v. DOROTHY HAINES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6417-03T46417-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOROTHY HAINES,

Defendant-Appellant.

___________________________________

 

Submitted January 18, 2006 - Decided February 3, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Accusation No. 03-07-0438.

Richard W. Berg, attorney for appellant.

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Pursuant to a pre-indictment plea agreement, defendant pled guilty to a charge of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4a, and a charge of hindering apprehension, in violation of N.J.S.A. 2C:29-3b. Under the terms of the agreement, the State agreed to recommend a twenty-seven year term of imprisonment for the aggravated manslaughter, subject to the 85% period of parole ineligibility mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, and a consecutive five-year term for hindering her own apprehension. The trial court sentenced defendant in accordance with the plea agreement. Consequently, defendant is now serving a thirty-two year term of imprisonment, of which twenty-seven years are subject to NERA parole ineligibility.

On appeal from the judgment of conviction, defendant presents the following arguments:

I. THE SENTENCE IMPOSED WAS ILLEGAL AND MANIFESTLY EXCESSIVE.

II. THE SENTENCE WAS UNCONSTITUTIONAL.

In State v. Natale, 184 N.J. 458, 466 (2005), the Court 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." As a remedy for this constitutional violation, the trial court must conduct "a new sentencing hearing in each affected case 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. This holding is applicable to any "defendant[] with [a] case[] on direct appeal as of the date" Natale was decided. Id. at 494.

Defendant was sentenced to a twenty-seven year term of imprisonment for aggravated manslaughter, which is seven years above the presumptive twenty-year term for this offense, N.J.S.A. 2C:44-1f(1)(a), and a five-year term for hindering her own apprehension, which is one-year above the presumptive four-year term for this third-degree offense, N.J.S.A. 2C:44:1-f(1)(d). The trial court identified "[t]he nature and circumstances of the offense, . . . including whether or not it was committed in an especially heinous, cruel or depraved manner[,]" N.J.S.A. 2C:44-1a(1), as one of the aggravating factors justifying these sentences. Thus, defendant's sentences to terms above the presumptive were based on a "judicial finding of [an] aggravating factor[], other than a prior criminal conviction," Natale, supra, 184 N.J. at 466, and her conviction was on direct appeal when Natale was decided. Therefore, she is entitled to be resentenced without consideration of the presumptive terms formerly applicable to the offenses she committed.

In addition, the trial court should reconsider its decision to reject defendant's psychological problems as a mitigating sentencing factor in light of State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998); State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002); and State v. Dalziel, 182 N.J. 494, 503-05 (2005).

Because defendant must be resentenced, there is no need to consider her other arguments relating to the alleged excessiveness of her sentence.

Accordingly, defendant's sentence is vacated, and the case is remanded for resentencing in conformity with this opinion.

 

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A-6417-03T4

February 3, 2006