STATE OF NEW JERSEY v. CALVIN WESLEY SPRAGUE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0745-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CALVIN WESLEY SPRAGUE,

Defendant-Appellant.

________________________________

December 23, 2010

Submitted: December 1, 2010 - Decided:

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-07-1093.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mary Kate Simmons, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Stonerod, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a June 20, 2008 judgment of conviction (JOC) of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Five). The judge sentenced defendant to an extended term as a persistent offender and imposed an aggregate prison term of fifteen-years subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

The victim and defendant met through a singles ad in a local newspaper and dated for approximately eight weeks. On January 25, 2007, they agreed to spend the night in a motel room. Defendant expressed a desire to marry her and have children together, she resisted, and defendant became "real quiet and distant." The victim wanted to leave, changed her mind, and laid down on the bed fully clothed. Defendant left the room to buy a sandwich, returned, and stabbed a knife into her back. She pulled the knife out of her back and noticed that defendant was holding two hands-full of knives. Defendant stated that he wanted to kill her, attempted to stab her in the chest, and injured her left hand, right thumb, and wrist. She called 911, the police arrived, and defendant was arrested.

An emergency medical technician transported the victim to the hospital. A doctor examined her, observed that she sustained injuries to her right arm, left thumb, back, and chest, and sutured her arm and thumb. She was hospitalized overnight.

A detective arrived at the scene, entered the motel room, and observed a black plastic bag in a toilet bowl containing several knives, including one that was bent. The detective photographed the blood stains on the bed, nightstand, and phone, the injuries to the victim, and the knives.

Defendant testified at trial that he called a number in the victim's ad and listened to a message that stated "[h]i, this is Stacey. I'm looking for a drug and disease-free man that is generous and wants to meet for discreet times." He explained that prior to January 25, they engaged in rough sex involving handcuffs, knives, whips, and paddles. He alleged that the victim wanted to act out rape fantasies and other scenarios. He stated that the victim requested that they meet on January 25, and that he bring "all the stuff [they] needed." Defendant maintained that the victim's injury to her back resulted from consensual sex that night, and denied that he threatened to harm her.

On May 2, 2008, the jury found defendant guilty of second-degree aggravated assault (Count Two), third-degree possession of a weapon for an unlawful purpose (Count Four), and fourth-degree unlawful possession of a weapon (Count Five). On June 20, 2008, the judge sentenced defendant to an extended term as a persistent offender and imposed a fifteen-year prison term on Count Two, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2., concurrent to three-year terms on Counts Four and Five. The judge ordered restitution in the amount of $18,435.25, and later reduced the amount to $15,744.

On appeal, defendant raises the following points:

POINT I

THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE R. 3:20

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM. ACCORDINGLY THIS PART OF THE DEFENDANT'S SENTENCE WARRANTS MODIFICATION BY THIS COURT.

POINT III

THE FIFTEEN-YEAR JAIL SENTENCE WITH PAROLE INELIGIBILITY OF 85% AND THREE YEARS OF PAROLE SUPERVISION FOR AGGRAVATED ASSAULT IN THE SECOND DEGREE WAS MANIFESTLY EXCESSIVE.

POINT IV

THE IMPOSITION OF $18,435.25 IN RESTITUTION WAS IMPOSED WITHOUT A HEARING VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS. (Not Raised Below)

POINT V

THE UNEXPLAINED LAPSE OF SIX MONTHS BETWEEN THE TIME OF THE DEFENDANT'S ARREST AND HIS INDICTMENT COMBINED WITH A NINE-MONTH DELAY FOR TRIAL CONSTITUTED A DENIAL OF DEFENDANT'S RIGHT TO A SPEEDY TRIAL.

I

We begin by considering whether the verdict was against the weight of the evidence. Rule 3:20-1 is the governing rule and provides in part that:

The trial judge shall not . . . set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

Our standard of review is that a trial court's ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We "must make [our] own determination as to whether there was a miscarriage of justice, deferring to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record. . . ." Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2011). We "must accept as true the evidence supporting the jury's verdict and all permissible inferences therefrom." Ibid. (Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) certif. denied, 186 N.J. 242 (2006); citing Bell Atl. Network Servs, Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.), certif. denied, 162 N.J. 130 (1999)). There is no miscarriage of justice when a "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (quoting State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993) (internal quotation marks omitted)); see State v. Brown, 80 N.J. 587, 591 (1979) (applying this standard when deciding a motion for a new trial as against the weight of the evidence) (citing State v. Reyes, 50 N.J. 454, 459 (1967)).

Here, the jury evaluated the weight of the evidence. State v. Ingenito, 87 N.J. 204, 211 (1981). We must defer to the "jury's assessment of the witnesses' credibility and demeanor and the general 'feel of the case.'" State v. Davis, 229 N.J. Super. 66, 81 (App. Div. 1988) (quoting State v. Sims, 65 N.J. 359, 373 (1974)).

In denying defendant's motion to set aside the verdict as against the weight of the evidence, the judge stated:

This is a simple situation where the jury believed the victim, believed the evidence as offered to it by the State and did not believe the defendant. It should be pointed out that the defense theory of the case, . . . the mechanism of how the injury occurred is in this Court s view, and I m not replacing my judgment with the jury s judgment [,] . . . it s biomechanically impossible to have had the location of each of the parties in the location that [defendant] testified to and have the resulting injuries. It s impossible for it to have occurred that way and that certainly may have play in the jury s mind. There is no manifest denial of justice here, the jury verdict will remain in place.

We reach the same conclusion. We have carefully considered the record and the arguments of counsel and conclude that there was no manifest denial of justice under the law.

II

Defendant argues that the judge erred by sentencing him to an extended term in prison and that his sentence was manifestly excessive. We find no merit in either argument.

A sentencing court has the discretion to impose an extended sentence pursuant to the persistent offender statute, which provides in part that:

The court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended term of imprisonment if it finds . . . [that t]he defendant has been convicted of a crime of the first, second or third degree and is a persistent offender.

[State v. Pierce, 188 N.J. 155, 162 (2006)(quoting N.J.S.A. 2C:44-3a).]

A court must find that a defendant qualifies as a "persistent offender," defined as:

a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

[N.J.S.A. 2C:44-3a.]

"[T]he range of sentences[] available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Pierce, supra, 188 N.J. at 169; See N.J.S.A. 2C:43-7a(3).

Defendant conceded that he was eligible for a discretionary extended term as a persistent offender because defendant met the statutory criteria. Defendant's past criminal history included a 1994 conviction for third-degree criminal restraint and a 2004 conviction for second-degree endangering the welfare of a child. He argued, however, that the judge abused his discretion by imposing an extended term because "the . . . circumstances did not justify [it]."

The scope of our review of a sentence is limited. Appellate review is not an opportunity for this court to substitute our judgment for that of the trial judge and to impose our view of the appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Evers, 175 N.J. 355, 386 (2003). Rather, we review a sentence within a set of guidelines established by the Supreme Court in State v. Roth, 95 N.J. 334, 364-66 (1984). Within these guidelines, we can:

(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Id. at 364-65.]

In sentencing a defendant, a trial court must identify the relevant aggravating factors of N.J.S.A. 2C:44-1a and the relevant mitigating factors of N.J.S.A. 2C:44-1b, "determine which factors are supported by a preponderance of [] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989). "An appellate court is bound to affirm a sentence, even if it 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." Ibid.

The judge considered the facts of this case and sentenced defendant to a fifteen-year prison term on Count Two, second-degree aggravated assault, subject to an eighty-five percent period of parole ineligibility pursuant to NERA, N.J.S.A. 2C:43-7.2, and imposed concurrent three year terms on the weapons convictions (Counts Four and Five). He found the following aggravating factors: factor three, the risk of re-offense, N.J.S.A. 2C:44-1a(3); factor six, the extent of defendant's criminal record, N.J.S.A. 2C:44-1a(6); and factor nine, the need for deterrence, N.J.S.A. 2C:44-1a(9). No mitigating factors applied.

Having closely examined the record in light of the parties' arguments, we conclude that the trial judge engaged in a careful qualitative analysis of the aggravating factors, properly found there were no mitigating factors, and imposed an appropriate discretionary extended sentence that hardly shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65.

III

We reject defendant s argument that the judge erred by imposing restitution without an ability to pay hearing. At sentencing, his counsel stated that "[defendant] always worked, he always had a job, and I think that's important because it tells what his prospects will be in the future." When the judge imposed restitution in the amount of $18,345.25, defendant never argued that he was unable to pay. After sentencing, defendant filed two motions in which he addressed the subject of restitution.1 Defendant only challenged the amount of the restitution; he failed to argue he was unable to pay. On March 27, 2009, the judge conducted a hearing to address defendant's contention that the restitution amount was calculated improperly. The judge reduced the amount to $15,744, and defendant did not state he was unable to pay. From the record before us, we discern no abuse of discretion by the judge.

IV

Finally, we see no merit to defendant's argument that he was denied a speedy trial. When analyzing whether a defendant has been afforded a speedy trial we consider the "[l]ength of [] delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972). Defendant was arrested on January 26, 2007, indicted2 on July 24, 2007, and tried nine months later. Defendant filed his motion for a speedy trial less than six months from arrest, and filed his brief in support of that motion two days after he was indicted. An appropriate amount of bail was established. We discern no abuse in discretion by denying his motion for a speedy trial.

A

1 Defendant filed a motion to amend the JOC and a motion for reconsideration. In both motions, defendant contended that the restitution amount was incorrect.

2 Defendant was indicted and charged with first-degree attempted murder, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:11-3a(1) (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Two); third-degree terroristic threats, N.J.S.A. 2C:12-3b (Count Three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Five).