STATE OF NEW JERSEY v. THERESA WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THERESA WILLIAMS, a/k/a THERESA

MARTIN, a/k/a BIBI HAJRA KHAN,

Defendant-Appellant.

__________________________________

December 5, 2014

Argued November 12, 2014 Decided

Before Judges Ostrer and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0231.

Moses Rambarran argued the cause for appellant (The Rambarran Law Firm and Eric V. Kleiner, attorneys; Mr. Rambarran, of counsel and on the brief).

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L.Molinelli, BergenCounty Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

PER CURIAM

This case returns to us after a remand. See State v. Williams, No. A-5505-10 (App. Div. June 20, 2013) (Williams I). Defendant appealed her conviction, after a guilty plea, to second-degree attempt to commit extortion, N.J.S.A. 2C:5-1, N.J.S.A. 2C:20-5. Consistent with her plea agreement, the court sentenced defendant to a downgraded term of three years flat, as if she committed a third-degree offense.

The sole basis for defendant's direct appeal was the alleged ineffective assistance of her plea counsel. Williams I, supra, slip op. at 1. We concluded that the ineffective assistance of counsel argument should not be presented in a direct appeal, and should instead be raised in a petition for post-conviction relief. Id. at 4 (citing State v. Preciose, 129 N.J. 451, 460 (1992)).

However, applying the principles set forth in State v. Moore, 377 N.J. Super. 445, 450 (App. Div.), certif. denied, 185 N.J. 267 (2005), we sua sponte vacated the sentence. Williams I, supra, slip op. at 5. We held the trial court had failed to make the findings essential to justify a sentence downgraded pursuant to N.J.S.A. 2C:44-1(f)(2). Id. at 6. The Criminal Code permits a downgraded sentence for a first-degree or second-degree crime "only if the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands the lesser sentencing range." Id. at 6 (internal quotation marks and citation omitted). The standard is a demanding one. See State v. Megargel, 143 N.J. 484, 496-502 (1996) (discussing standard for imposing downgraded sentence).

We noted that although the trial judge found aggravating factors three and nine and mitigating factor seven, N.J.S.A. 2C:44-1(a)(3), -1(a)(9) and 1(b)(7), he did not expressly balance the factors, nor did he expressly address the "interest of justice" standard. Williams I, supra, slip op. at 6. We therefore remanded for the court to do so. Id. at 8. We held that if the court were unable to justify the downgraded sentence in accord with the Code and Megargel, then it would be compelled to allow defendant to withdraw her plea. Ibid. In short, we held it was not sufficient for the court to impose the downgraded sentence simply because it complied with the plea agreement.

At the first hearing on remand, the trial judge declined defendant's request to consider evidence of mitigating circumstances discovered after her sentencing.1 Defense counsel argued that defendant was a victim. She entered the United States from Guyana at the age of fifteen; was taken in by the victim's family where she served as a domestic worker; and the victim's late husband sexually abused her for over seven years. Defense counsel argued that defendant's own victimization was a mitigating factor. He sought to present to the court proof of her victimization claim. Defendant argued that absent expansion of the record, the court would be unable to make the necessary findings to satisfy N.J.S.A. 2C:44-1(f).

At the second hearing, the court refused to consider a motion to withdraw defendant's plea which defendant filed on the same day as the scheduled date for the sentencing hearing on remand. The State urged the court that the record supported the requisite findings for a downgraded sentence. Among other facts, the State noted that the victim consented to the terms of the plea.

The judge reaffirmed his view that a three-year flat sentence was appropriate. Upon further review of the sentencing record, the judge determined that aggravating factor three, pertaining to the risk of reoffending, N.J.S.A. 2C:44-1(a)(3), did not apply. Since the offense was a "crime of opportunity" involving a "youthful woman," which "will not happen again," the court found mitigating factor eight, "the defendant's conduct was the result of circumstances unlikely to recur." N.J.S.A. 2C:44-1(b)(8).

In addition, the court found mitigating factor nine; the defendant's character and attitude indicated she was unlikely to reoffend. N.J.S.A. 2C:44-1(b)(9). The court gave factor nine "little weight," but deemed it appropriate in view of the fact that the offense was defendant's first.

The court also found mitigating factor eleven N.J.S.A. 2C:44-1(b)(11) ("imprisonment . . . would entail excessive hardship" to the defendant or dependents) noting that three years in State prison is a hardship. The trial judge also applied mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13) ("conduct of a youthful defendant was substantially influenced by another person more mature than the defendant"). The judge noted that the co-defendant was forty years old at the time of the offense, while defendant was only twenty-nine.2 He concluded that the co-defendant played a more active and influential role in planning the extortion scheme, and used his influence "to cause [defendant] to become more involved in this scheme."3

The court also reaffirmed its prior finding of aggravating factor nine, the need to deter, N.J.S.A. 2C:44-1(a)(9). In its amended judgment of conviction, the court also reaffirmed its finding of mitigating factor seven, the defendant's lack of a prior record of delinquency or criminal activity. N.J.S.A. 2C:44-1(b)(7).

The judge stated that he was "clearly convinced that the mitigating factors substantially outweigh the aggravating factors." The court also found that a downgraded sentence satisfied the "interest of justice" prong. As to the latter finding, the judge noted that defendant maintained that the victim's late husband who she claimed had sexually assaulted her repeatedly over a period of years told defendant before he died that she should seek money from his wife.

The court relied in part on the presentence report. According to the report, "when asked if there are any factors contributing to the commission of the instant offense, the defendant stated that while he was still alive[,] [the victim's husband] told her to do it and he made a voice recording of himself saying he wanted her to have the money." The judge reasoned that defendant may have had a sense, albeit misdirected, that she was entitled to the funds. He concluded, "I think it would truly be a miscarriage of justice for this woman to be sent to jail for more than three years."

In a motion for reconsideration, defendant argued that the court should have imposed a lesser sentence, and the sentence was excessive because the defendant received the same sentence as her more culpable co-defendant. Defendant argued that mitigating factors outweighed the non-existent aggravating factors. She asserted that the need to deter was inconsistent with the finding of mitigating factor eight, pertaining to the unlikelihood of a recurrence of defendant's conduct. She also argued that the court should have found additional mitigating factors, including: factor one, "[t]he defendant's conduct neither caused nor threatened serious harm," N.J.S.A. 2C:44-1(b)(1); factor two, "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(2); and factor five, "[t]he victim of the defendant's conduct induced or facilitated its commission," N.J.S.A. 2C:44-1(b)(5). She also argued that the risk of removal by federal immigration officials increased the hardship under N.J.S.A. 2C:44-1(b)(11).

Defendant argued that the trial court erred in failing to consider the sexual victimization of defendant in connection with the interest of justice standard. She cited State v. L.V., 410 N.J. Super. 90, 112-13 (App. Div. 2009), certif. denied, 201 N.J. 156 (2010), in which we imposed a downgraded sentence for second-degree aggravated assault and reckless manslaughter, where the defendant was twice impregnated by her father, who subjected her to sexual and psychological abuse. Id. at 93, 94-96. The father compelled the defendant to discard the newborns by throwing them out the window; the first child died, and the second suffered multiple injuries. Id. at 95, 96.

The trial court denied the reconsideration motion, concluding the arguments should have been addressed at sentencing, and defendant was attempting to utilize information not available at the time of defendant's original sentencing.

Defendant appeals from the sentence imposed after remand, and the order denying her motion for reconsideration. She presents the following points for our review

I. COURT ERRED IN FINDING CONTRADICTORY FACTORS: AGGRAVATING 9 (NEED TO DETER) AND MITIGATING 8 (UNLIKELY TO RECUR) AND IN FAILING TO JUSTIFY A DOWNGRADED SENTENCE AND THE PLEA AGREEMENT AFTER ELIMINATING AGGRAVATING FACTOR 3 (REOFFENDING).

II. THE INTERESTS OF JUSTICE STANDARD REQUIRED THE COURT TO CONSIDER MITIGATING FACTORS BEYOND THE PRESENTENCE REPORT AND THE CIRCUMSTANCES AS THEY EXISTED AT THE ORIGINAL SENTENCING.

III. THE INTERESTS OF JUSTICE STANDARD REQUIRED THE COURT TO CONSIDER MITIGATING FACTORS BEYOND THE PRESENTENCE REPORT AND THE CIRCUMSTANCES AS THEY EXISTED AT THE ORIGINAL SENTENCING.

IV. IT WAS AN ABUSE OF DISCRETION TO FAIL TO CONSIDER DEFENDANT'S MOTION TO WITHDRAW HER PLEA AND TO REIMPOSE THE SAME TERMS IN ACCORDANCE WITH THE PLEA AGREEMENT.

We are guided by well-established principles in our review of the trial court's sentencing decision. We apply a deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We may not substitute our judgment for a sentencing court. State v. O'Donnell, 117 N.J. 210, 215 (1989). We may correct a sentence if the determination of the trial court was clearly mistaken. This could occur if (1) the trial court failed to follow the applicable sentencing guidelines; (2) the aggravating and mitigating factors found below were not based on sufficient evidence in the record; or (3) the sentence imposed was "clearly unreasonable so as to shock the judicial conscience." State v. Jarbath, 114 N.J. 394, 401 (1989) (internal quotation marks and citation omitted).

Specifically with respect to the imposition of a downgraded sentence, the court must find, by clear and convincing evidence, that the mitigating factors substantially outweigh the aggravating factors, and the interest of justice supports the downgrade. N.J.S.A. 2C:44-1(f). See Megargel, supra, 143 N.J. at 504-05; L.V., supra, 410 N.J. Super. at 112. A defendant must provide compelling reasons for the downgrade, although not as compelling as those that would justify a non-custodial sentence under N.J.S.A. 2C:44-1(d). Megargel, supra, 143 N.J. at 501-02. "[A] court must apply the basic principles that are applicable to all sentencing decisions under the Code." Id. at 500. "[T]he most single important factor" is the severity of the crime. Ibid. However, "the trial court must consider the nature of and the relevant circumstances pertaining to the offense." Ibid. "[F]acts personal to the defendant may be considered in the sentencing process." Id. at 501.

We are satisfied that there was sufficient evidence in the record to support the trial court's finding of aggravating and mitigating factors. A sentencing court engages in a qualitative analysis of the factors, assigning the weight appropriate "in a case-specific balancing process." Fuentes, supra, 217 N.J. at 72-73. We discern no error in the court's determination, by clear and convincing evidence, that the mitigating factors substantially outweighed the aggravating factors.

Defendant argues that the court erred in finding aggravating factor nine, in view of its finding of mitigating factor eight. We disagree. The Court in Fuentes rejected the "inflexible rule" that the two are inherently incompatible. 217 N.J. at 79. Even in the egregious circumstances in L.V., we found that aggravating factor nine applied, although it was not entitled to the substantial weight attributed by the trial court, notwithstanding our finding of mitigating factors eight and nine. 410 N.J. Super. at 111-12.

We also find sufficient evidence to support the court's finding of the "interest of justice" standard. We do not believe the trial court was required to reject evidence pertaining to the circumstances of the offense offered by defense counsel. We need not address whether the court should also have considered evidence of defendant's post-sentencing rehabilitation and activities. Defendant presented evidence that she entered the United States at the age of fifteen and was immediately placed as an illegal domestic worker in the household of the extortion victim and her husband. Defendant was in constant fear of losing her job and her ability to remain in this country. She asserted that she was sexually abused by the victim's husband for a period of seven years. He also filmed their sexual encounters. When he became ill, he expressed remorse to defendant and allegedly told her that she should seek monetary compensation from his wife after his death.

Defendant's alleged exploitation and victimization provides an additional potential basis for an "interest of justice" finding, although the trial court did not ground its finding on that evidence. Although defendant did not suffer cognitive limitations comparable to those of the defendant in L.V., our reasoning in that case applies with equal force here.

The trial court on remand also noted that defendant was not the moving force behind the extortion scheme. As the Megargel Court found, whether a defendant is "the mastermind" or "loyal follower" is significant in the "interest of justice" determination. 143 N.J. at 501.

In sum, consistent with our remand and Moore, supra, the court provided sufficient reasons for approving the downgraded sentence.

We briefly address defendant's argument that the trial court erred in refusing to consider her motion to withdraw her plea. We discern no error. Defendant filed her motion to withdraw her plea the same day the judge was to conduct the remand hearing. The judge correctly determined that the scope of the remand was limited to determining whether the sentence imposed in 2011 was justified under N.J.S.A. 2C:44-1(f).

However, the court should have considered the motion separately, after affording the State an opportunity to respond. A motion to withdraw a plea may be made at any time, subject to the manifest injustice standard if filed after sentencing. State v. O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 2014) (citing Rule 3:21-1). We express no opinion as to the merits of the motion, nor do we express an opinion on a potential petition for post-conviction relief which, as we have explained, are separate and discrete applications for relief. Id. at 368-73.

Affirmed as to sentence. Remanded for consideration of the motion to withdraw the plea. We do not retain jurisdiction.

1 By the time of the court's decision on remand, defendant reportedly had completed the custodial portion of her sentence, and was released from parole on April 16, 2013.

2 The presentence report lists defendant's birthdate as October 15, 1981, while the revised judgment of conviction lists her birthdate as July 11, 1978. In her signed affidavit of December 22, 2011, defendant provided a birthdate of October 15, 1982.

3 In the judgment of conviction, the court omitted mitigating factor thirteen and included factor twelve, regarding cooperation with law enforcement authorities. N.J.S.A. 2C:44-1(b)(12). We conclude that the court did so in error. The court's oral decision governs. State v. Walker, 322 N.J. Super. 535, 556 (App. Div.) (holding that, "It is firmly established that the sentencing transcript is the true source of the sentence," not the judgment of conviction) (internal quotation marks and citation omitted), certif. denied, 162 N.J. 487 (1999).