STATE OF NEW JERSEY v. D.D.Z.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3581-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.D.Z.,

Defendant-Appellant.

___________________________________

December 26, 2013

Submitted November 12, 2013 Decided

Before Judges Ashrafi and St. John.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment

No. 03-06-0881.

D.D.Z., appellant, pro se.

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In a prior appeal, we affirmed defendant's conviction at trial for sexual crimes committed upon a minor but remanded for re-sentencing. State v. D.D.Z., No. A-3328-04 (App. Div. Feb. 25, 2008). Defendant now appeals his re-imposed sentence of seventeen years imprisonment and eight years of parole ineligibility. We affirm.

On June 27, 2003, defendant was indicted for second-degree sexual assault upon a child less than thirteen years old, N.J.S.A. 2C:14-2(b), and for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On June 24, 2004, a jury convicted defendant on both charges. Following evaluation for sexual offender treatment, defendant was originally sentenced on January 28, 2005.1 The trial judge granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a) based on his 1988 conviction for endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and his 2004 conviction on a federal charge of using an interstate facility to entice a minor for purposes of sexual activity, 18 U.S.C.A. 2422(b).

On the present indictment, the trial judge sentenced defendant on the first count to an extended term of seventeen years with an eight-year period of parole ineligibility, and on the second count to a concurrent term of five years with two-and-a-half years of parole ineligibility. Defendant was found to be eligible and amenable to sexual offender treatment, and the sentence was to be served at the Adult Diagnostic and Treatment Center for sexual offenders at Avenel. Also, the state sentence was to run consecutively to the federal sentence defendant was then serving.

During the pendency of defendant's appeal before us, the Supreme Court issued its decision in State v. Pierce, 188 N.J. 155 (2006), with respect to persistent offender sentencing. Subsequently, we affirmed the jury's verdict of guilty on the two charges, but we remanded for re-sentencing in accordance with the mandate of Pierce. D.D.Z., supra, slip op. at 18-19.

Defendant's re-sentencing was delayed while he completed service of his federal sentence in another state. Upon his return to New Jersey, and certain proceedings that are not relevant to the current appeal, he was re-sentenced by a different judge on March 2, 2012, the original trial judge having retired from the bench.

On re-sentencing, the court again determined that defendant was a persistent offender under N.J.S.A. 2C:44-3(a). After weighing the applicable aggravating factors and the absence of any mitigating factors, the court imposed the same sentence of seventeen years imprisonment with an eight-year parole ineligibility period on the first count, and a concurrent term of five years with a two-and-a-half-year parole ineligibility period on the second count.

Defendant appeals from the re-sentencing and presents the following arguments:

POINT I

THE COURT IMPROPERLY FOUND THE DEFENDANT A PERSISTENT OFFENDER.

POINT II

DEFENDANT SHOULD HAVE BEEN ALLOWED TO STATE HIS MITIGATING CIRCUMSTANCES.

We find no merit in either argument.

Our standard of review from a sentencing is limited. We review the sentencing court's exercise of "a structured discretion designed to foster less arbitrary and more equal sentences" to determine: (1) if the sentencing court followed the sentencing guidelines, (2) if it based its analysis of the aggravating and mitigating factors on "competent credible evidence," and (3) if "the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 345, 364-65 (1984). In assessing the severity or leniency of the sentence, we "must avoid" substituting our own judgment for that of the sentencing court. Id. at 365.

An extended term of imprisonment pursuant to N.J.S.A. 2C:43-7 may be imposed on a defendant who has been convicted of a third or higher degree crime if the prosecutor moves for an extended term and demonstrates that the defendant is a "persistent offender" as that term is defined in N.J.S.A. 2C:44-3.2 The sentencing court must review the defendant's record of prior criminal convictions and determine whether the defendant meets the statutory definition. See Pierce, supra, 188 N.J. at 169. A defendant that qualifies as a persistent offender is subject to a range of imprisonment that "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Ibid. The sentencing court must determine the appropriate sentence within this range by weighing and balancing the relevant aggravating and mitigating factors. Ibid.

In this case, the sentencing court correctly found that the substantive requirements of N.J.S.A. 2C:44-3(a) applied to defendant. Defendant, who was more than twenty-one years old, was convicted of the second-degree crime of sexual assault upon a child in January 2005. He had been previously convicted, while over the age of eighteen, in New Jersey for endangering the welfare of a child in 1988, and in federal court for enticing a minor for sexual purposes in 2004.3 Although the federal conviction was being appealed at the time of defendant's original sentencing in this case, defendant's record included convictions on two distinct qualifying crimes on separate occasions.

Defendant contends the courts at his original sentencing and at his re-sentencing both erred because the two prior convictions were more than ten years apart. However, N.J.S.A. 2C:44-3(a) only requires "the latest in time of these [prior] crimes or the date of the defendant's last release from confinement" to be within ten years of the crime for which defendant is being sentenced as a persistent offender. The statute does not impose any limitation on the time between the prior convictions. Ibid.

Defendant also claims the original sentencing court erred by considering a conviction that was on appeal at the time of his original sentencing, but we have previously held that sentencing courts may consider convictions that are pending on appeal or have a right of direct appeal. State v. Cook, 330 N.J. Super. 395, 422 (App. Div.) (citing State v. Haliski, 140 N.J. 1, 20 (1995)), certif. denied, 165 N.J. 486 (2000). In the event that a prior conviction is reversed on appeal, the defendant is then entitled to reconsideration of his extended term sentence. Ibid.; see also Haliski, supra, 140 N.J. at 17-18 (same procedure applicable to Graves Act sentencing based on prior conviction then on appeal). Here, in fact, defendant's federal conviction was affirmed on appeal after he was originally sentenced in this case and before his re-sentencing in March 2012.

We find no error in the sentencing court's classification of defendant as a persistent offender based on his 1988 state conviction and his 2004 federal conviction.

After making the determination that defendant was a persistent offender, the sentencing court followed the mandate of Pierce, supra, 188 N.J. at 169, and considered imposing a sentence between five and twenty years, which ranges from the minimum of the ordinary-term for a second degree offense under N.J.S.A. 2C:43-6 to the maximum of the extended-term for a second degree offense under N.J.S.A. 2C:43-7. The court analyzed the aggravating and mitigating factors and found applicable under N.J.S.A. 2C:44-1(a) aggravating factors three, "[t]he risk that defendant will commit another offense," six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses for which he has been convicted," and nine, "[t]he need for deterring the defendant and others from violating the law." The court did not find any mitigating factors applicable under N.J.S.A. 2C:44-1(b).

Defendant contends that the court erred because he was not permitted to present evidence of his mitigating circumstances. However, the court did not prohibit defendant from presenting evidence or argument regarding mitigating circumstances. The record shows that defendant, who appeared pro se, simply did not make any argument regarding mitigating circumstances. Even though some lenience is afforded to pro se litigants, defendant is not relieved of his burden of presenting evidence or raising arguments because he is a pro se litigant.

In his briefs on appeal, defendant details the evidence he would have presented to the sentencing court and argues that he alerted the court that it should consider mitigating factors in letters he had written before the re-sentencing. Specifically, defendant claims that while in federal prison he received treatment for being a sex offender, completed employment training, attained a doctorate in theology, converted to Christianity, participated in the Toastmasters Program, and took a Criminal Thinking Error course. The State concedes that the court on re-sentencing would have been authorized to take such factors into consideration. See State v. Randolph, 210 N.J. 330, 354 (2012) (deciding after the date of defendant's re-sentencing in this case that, unless directed otherwise, a re-sentencing court should view a defendant "as he stands" on the date of re-sentencing rather than as of the time of original sentencing). Here, defendant did not present the evidence and arguments at his re-sentencing that he raises before us. We conclude the re-sentencing judge did not err in finding no mitigating factors were applicable. See State v. Bieniek, 200 N.J. 601, 608 (2010).

Affirmed.

1 The original Judgment of Conviction is mistakenly dated January 28, 2004.

2 N.J.S.A. 2C:44-3(a) states:

A persistent offender is 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 defendant is being sentenced.

3 It appears from the limited record presented to us that defendant was found guilty of the federal charge in August 2004 and was sentenced in federal court in November 2004, that is, after his conviction but before his sentencing on the charge in this matter.