STATE OF NEW JERSEY v. ANDRE JONES, III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5038-07T45038-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ANDRE JONES, III,

Defendant-Respondent.

________________________________________________________________

 

Argued January 7, 2009 - Decided

Before Judges Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-578.

Kimberly Yonta, Assistant Prosecutor, argued the cause for appellant (Edward J. DeFazio, Hudson County Prosecutor, attorney).

Robert L. Sloan, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).

PER CURIAM

This is an appeal by the State from a sentence imposed on June 13, 2008 in which the judge, over the State's objection, sentenced defendant to a term of imprisonment on count one that was appropriate to a crime one degree lower than the crime to which he pled guilty. See N.J.S.A. 2C:44-1(f)(2). Over the State's objection, the judge also amended the conviction from first-degree robbery, which was the crime to which defendant had pled guilty, to second-degree robbery. We reverse.

During the plea colloquy on January 28, 2008, defendant entered a plea of guilty to first-degree robbery in which the State agreed to recommend at the time of sentencing a ten-year term of imprisonment subject to a No Early Release Act (NERA) eighty-five percent parole ineligibility term. See N.J.S.A. 2C:43-7.2. During his factual statement, defendant acknowledged that on January 15, 2007, "while in the process of stealing [the victim's] pocketbook, [he] cut her with [a] knife."

At the time of sentencing, the judge, sua sponte, rendered an oral opinion in which he downgraded the charge to second-degree robbery and reduced the sentence to the lower end of the second-degree range, specifically six years imprisonment, subject to NERA. In his oral opinion, the judge relied on police reports supplied by defendant, and described the knife in question as a "three-inch blade pocket knife." Despite defendant's guilty plea to first-degree robbery, the judge found the knife was not a "deadly weapon" sufficient to elevate second-degree robbery to a first-degree crime.

Robbery is a second-degree crime, unless, in relevant part, the actor "is armed with, or uses or threatens the immediate use of a deadly weapon," in which case robbery is a crime of the first-degree. N.J.S.A. 2C:15-1(b). A "deadly weapon" is defined as "any . . . weapon, . . . which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury." N.J.S.A. 2C:11-1(c). Alternatively, "if the manner in which [the weapon] is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury," it is also deemed a "deadly weapon." Ibid.

The judge explained his reason for "downgrad[ing]" the crime to second-degree robbery as follows:

[I]t's clear that . . . the knife was there to cut the [pocketbook] straps. . . . [T]he court does not find that the victim could reasonably believe that this knife was capable of adducing [sic] death or serious bodily injury . . . . So this court finds . . . this case does not constitute a first-degree robbery. It's a second-degree robbery.

In reaching that conclusion, the judge also found that the mitigating factors "substantially outweigh the aggravating factors." He found the existence of three aggravating factors: the risk defendant will commit another crime, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record and the seriousness of the crimes of which he was convicted, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9).

As to mitigating factors, the judge found number nine, N.J.S.A. 2C:44-1(b)(9), defendant was unlikely to commit another crime. However, the judge made this finding despite having already reached the diametrically opposite conclusion with aggravating factor three: the risk defendant would commit another crime. Moreover, despite defendant's use of a knife to cut the purse off the victim's shoulder, during which he slashed her fingers, the judge found that defendant's conduct "neither caused or threatened serious harm" (mitigating factor one), N.J.S.A. 2C:44-1(b)(1), and "defendant did not contemplate that his conduct would cause or threaten serious harm" (mitigating factor two), N.J.S.A. 2C:44-1(b)(2). Equally troubling was the judge's finding that defendant is "particularly likely to respond affirmatively to probationary treatment" (mitigating factor ten), N.J.S.A. 2C:44-1(b)(10). The judge made this finding despite defendant's extensive and serious juvenile record, which consisted of a robbery in 2005, two separate instances of unlawful possession of a weapon, an aggravated assault and three separate violations of probation. Next, although the judge did not articulate or identify the "circumstances" in question, he nonetheless found that "defendant's conduct was the result of circumstances unlikely to recur" (mitigating factor eight), N.J.S.A. 2C:44-1(b)(8). The judge also found mitigating factor six (restitution), N.J.S.A. 2C:44-1(b)(b).

For first and second degree offenses, a judge may sentence a defendant to a term appropriate to a crime one degree lower only if the judge is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands." N.J.S.A. 2C:44-1(f)(2). The Court observed in State v. Dalziel, 182 N.J. 494, 504-05 (2005), that a judge must adopt all mitigating factors that are supported by the record. It stands to reason, however, and the Court has held, that a judge is not authorized to find mitigating, or aggravating, factors unless such factors are supported by "competent, reasonably credible evidence" in the record. State v. Roth, 95 N.J. 334, 363 (1984).

Even the most indulgent view of the record before us cannot support the judge's finding of mitigating factors one, two, eight, nine and ten. In particular, as to mitigating factor nine, defendant's extensive juvenile record and his commission of the two instant offenses, all by the age of nineteen, demonstrate, contrary to the judge's findings, a likelihood that defendant is likely to commit other offenses. As to mitigating factors one and two, in light of defendant's use of a knife to slash the purse straps of the victim, during which he sliced two of her fingers with that knife, the record does not support the judge's conclusions that defendant's conduct did not cause serious harm and defendant did not contemplate the risk of causing such serious harm. As to mitigating factor ten, the likelihood that defendant would succeed on probation, we conclude that such factor is inapplicable where, as here, the presumption of imprisonment remains. Despite numerous letters from defendant's family and friends, we also determine that the record fails to support the judge's finding in mitigating factor eight that the crime in question here resulted from circumstances--unspecified by the judge--unlikely to recur.

In light of our conclusion that these mitigating factors are unsupported and unjustifiable, and with these factors consequently stricken, the mitigating factors do not outweigh, much less "substantially outweigh," the aggravating factors. That being so, the first of the two prongs necessary for sentencing defendant one degree lower evaporates.

Wholly apart from the judge's erroneous finding that the mitigating factors outweighed the aggravating factors, is the judge's failure to identify--in either his lengthy oral opinion or in his supplemental written statement of reasons--the "interest of justice" that justifies a sentence one degree lower. See N.J.S.A. 2C:44-1(f)(2). Consequently, the imposition of a sentence in the second-degree range cannot be sustained.

Although the judge's failure to satisfy the standard set forth in N.J.S.A. 2C:44-1(f)(2) requires us to reverse the sentence and remand for the further proceedings we describe below, we cannot ignore another troubling aspect of the judge's handling of this sentencing. Specifically, the judge lacked authority to amend the conviction to a lower degree, here by reducing it from a first-degree crime to a second-degree crime. While N.J.S.A. 2C:44-1(f)(2) permits a judge, in appropriate cases, to sentence a defendant to a term appropriate for a crime one degree lower, a judge is never permitted, absent consent of the State, to reduce the actual crime for which a defendant is being sentenced. Doing so has rendered this sentence illegal. Indeed, during oral argument, defense counsel conceded that such an amendment of the crime would be illegal, although he maintained that the judge had merely reduced the sentence, not the actual conviction. However, the judgment of conviction and the judge's remarks at sentencing demonstrate otherwise. The judge had the right to reject the plea, resulting in a trial or the resumption of plea negotiations, but he lacked authority to amend the charge over the State's objection.

Considering the above, we vacate both the sentence imposed and the amendment of the conviction to a second-degree crime. This matter is restored to the status quo ante as it existed immediately after defendant entered his guilty plea. We remand for resentencing. Defendant shall have the right to file a motion to withdraw from the plea agreement, which he apparently contemplated before the judge made the rulings we have described. Any such motion shall be deemed a motion made prior to sentencing.

 
Reversed and remanded. We do not retain jurisdiction.

This matter came before us on the Excessive Sentence Oral Argument calendar.

The judge also sentenced defendant on count two to a five-year concurrent term for third-degree theft from the person, N.J.S.A. 2C:20-2(e)(2)(d), which was committed against a different victim on a different date. The sentence on count two is not an issue on appeal.

Because the State filed its notice of appeal on June 20, 2008, within ten days of the imposition of sentence on June 13, 2008, resentencing does not constitute double jeopardy or make an increase in the sentence constitutionally impermissible. State v. Sanders, 107 N.J. 609, 620-21 (1987); N.J.S.A. 2C:44-1(f)(2).

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A-5038-07T4

January 26, 2009