STATE OF NEW JERSEY v. MARLON D. HARGIS

NOT FOR PUBLICATION WITHOUT THE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.

MARLON D. HARGIS, a/k/a

MARLON D. HARGIS, JR.,

a/k/a MARION D. HARGIS,

Defendant-Appellant.

_____________________________

March 5, 2014

 

Submitted February 4, 2014 Decided

 

Before Judges Reisner and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 08-07-1816, 09-01-0102 and 10-04-0833.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

 

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Julie H. Horowitz,Special DeputyAttorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After the trial court denied defendant's motion to suppress evidence seized following a warrantless traffic stop, defendant entered a global plea resolving three pending indictments. He now appeals from the order denying his suppression motion, and from his sentence, which included consecutive terms. Having reviewed defendant's arguments in light of the facts and applicable legal principles, we remand to the trial court for a statement of reasons for its order denying the suppression motion, and its sentence.

I.

A July 2008 Atlantic County indictment charged defendant with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1), and third-degree manufacture, distribution, dispensing or possession of heroin with intent to do so, N.J.S.A. 2C:35-5(a) (2008 Indictment). The charges arose out of an arrest on July 1, 2008.

While free on bail, defendant was arrested again on October 30, 2008, leading to a thirteen-count indictment in January 2009 (2009 Indictment). He was charged with multiple third-degree drug offenses, including possession of heroin with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count nine); third-degree possession of a handgun, N.J.S.A. 2C:39-5(b) (count eight); and second-degree certain person not to possess a firearm, N.J.S.A. 2C:39-7 (count thirteen). Defendant's arrest followed a traffic stop. He allegedly fled on foot after the stop, discarding a handgun along the way. Defendant posted $125,000 bail on November 3, 2008.

Defendant was subsequently arrested a third time on August 12, 2009. An April 7, 2010 indictment charged defendant with three counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts one, two and five); three counts of second-degree certain person not to possess a firearm, N.J.S.A. 2C:39-7 (counts six through eight); fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f) (count three); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count four) (2010 Indictment). Police alleged that defendant failed to observe a traffic light and proceeded to drive to a hospital emergency room to seek treatment for a gunshot wound. The police found two weapons in plain view and a third in the vehicle's console.

In April 2009, defendant moved to suppress the heroin and handgun seized after the October 30, 2008, traffic stop. The police report stated that officers were conducting a "traffic check point." One officer used a handheld radar gun and directed vehicles into a parking lot "after a violation was observed." While doing so, an officer observed defendant driving while talking on a hand-held cell phone in violation of N.J.S.A. 39:4-97.3. That violation prompted the stop. As defendant handed over his license and registration, an officer observed bags of suspected drugs in defendant's jacket pocket. The police ordered defendant to exit the vehicle in order to conduct a pat down. Defendant pushed one officer away, and fled across the street. He discarded the drugs as he ran. He later pointed a handgun at a pursuing officer, prompting the officer to discharge his weapon. Police ultimately arrested defendant and recovered his handgun. The State argued that the officers had a reasonable and articulable suspicion to justify stopping defendant's vehicle, and had probable cause to arrest him for resisting arrest and CDS offenses.

Defendant argued in response that police ordered him to stop as part of a "traffic checkpoint," citing cases addressing stops performed as a result of "roadblocks," as opposed to stops prompted by evidence of violations of law. Counsel argued that the "traffic checkpoint" was unconstitutional, because it had not been established by supervisory officers, and was not developed and employed based on empirical data, or officially condoned. He argued that after the stop, he was physically removed from the vehicle. "Fearing an imminent assault, defendant broke free and ran." He supplied unsworn witness statements. Defendant requested an evidentiary hearing.

The State replied that there were no material facts in dispute warranting an evidentiary hearing under Rule 3:5-7(c). The State emphasized that although the police report used the word "traffic checkpoint," the police were not conducting a "roadblock," and had stopped defendant only after observing him commit a motor vehicle violation. The State provided a June 2009 investigation report of the county prosecutor's office.

By letter dated July 13, 2009, defense counsel withdrew defendant's request for a hearing and consented to a decision on the papers.

The trial court denied the motion by order entered August 21, 2009. The record does not contain any oral or written statement of reasons.

Defendant entered into a plea agreement on December 14, 2010. The agreement provided that defendant would plead to: (1) third-degree possession of heroin as charged in the 2008 Indictment, and the State would recommend a flat five-year term; (2) second-degree certain persons offense and third-degree possession of heroin with intent to distribute, as charged in the 2009 Indictment, and the State would recommend a ten-year term, with a five-year parole bar on the former offense, consecutive to an extended term of six-years,1 with a three-year parole bar on the latter offense, with the combined sixteen-year term and eight-year parole bar to run concurrent to the sentence under the 2008 Indictment; and (3) second-degree certain persons offense, as charged in the 2010 Indictment, and the State would recommend a five-year term, with a five-year parole bar, to run concurrent to the other sentences. Defendant provided a factual basis for the four charges.

The court sentenced defendant in accord with the plea agreement.2 In support of its sentence the court stated:

The aggravating factors are three, six and nine, no mitigating factors whatsoever exist. The aggravating factors are very weighty. Both of those firearms . . . offenses are subject to the Graves Act and the drug distribution, as negotiated, is an extended term. We have an armed defendant who [poses] a clear danger to lawful society.

 

The court did not address the imposition of the consecutive terms, except to note it was part of the "negotiated sentence."

This appeal followed. Defendant presents the following issues for our consideration:

POINT I

 

BECAUSE IMPORTANT FACTS IN THIS MATTER WERE IN DISPUTE, THE TRIAL COURT, SUA SPONTE, SHOULD HAVE HELD A TESTIMONIAL HEARING ON DEFENDANT[']S MOTION TO SUP[]PRESS. (Not Raised Below).

 

POINT II

 

THIS MATTER MUST BE REMANDED FOR A STATEMENT OF REASONS FOR THE DENIAL OF DEFENDANT[']S MOTION TO SUPPRESS. (Not Raised Below).

 

POINT III

 

THE MATTER MUST BE REMANDED BECAUSE THE SENTENCING JUDGE FAILED TO GIVE HIS REASONS FOR THE AGGRAVATING FACTORS HE APPLIED, AND BECAUSE, MISTAKENLY BELIEVING THAT CONSECUTIVE SENTENCES WERE MANDATORY, HE FAILED TO ENGAGE IN ANY ANALYSIS.

 

A. Consecutive Sentences are Unwarranted in this Case.

 

B. By Merely Reciting the Numbers of the Aggravating Factors He Considered Applicable in Reaching the Sentence, the Judge Abused His Discretion.

 

II.

We are constrained to remand to the trial court to enable it to provide appropriate findings of fact and conclusions of law in support of its order denying the motion to suppress; and for findings to support the weighing of aggravating and mitigating factors, as well as the imposition of the consecutive sentence.

The trial court provided no statement of reasons to justify its decision to deny the motion to suppress. The court's failure to provide findings of fact and conclusions of law violates Rule 1:7-4. A trial court "must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). "Failure to perform that duty 'constitutes a disservice to the litigants, the attorneys and the appellate court.'" Id. at 569-70 (quoting Kenwood Assocs. v. Bd. of Adjustment of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). We shall not speculate about the basis for the court's conclusions. See Rosenberg v. Bunce, 214 N.J. Super. 300, 304 (App. Div. 1986) ("Without the benefit of findings and conclusions we can only speculate about the reasons for a trial court's decision."). Accordingly, we must reverse and remand for a statement of reasons.

We reach a similar conclusion regarding the court's sentence. The Supreme Court recently addressed the principles governing our review. State v. Fuentes, ___ N.J. ___, ___ (2014). We owe deference to a trial court's sentencing decision. Id. at 13. We may disturb a sentence only if: "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors . . . were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Sentences imposed pursuant to plea agreements are presumed to be reasonable. Id. at 14.

Nonetheless, "[e]ven a sentence recommended as part of a plea agreement . . . may be vacated if it does not comport with the sentencing provisions of our Code of Criminal Justice." Ibid. Even when imposing a sentence pursuant to a plea agreement, a trial court must "'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" Id. at 17 (quoting R. 3:21-4(g)). "A careful statement of reasons also facilitates appellate review." Id. at 18.

The trial court did not adhere to these principles. Reciting that "[t]he aggravating factors are three, six and nine," without more, does not suffice. Vested with the weighty power to determine a convicted defendant's term of incarceration in accord with the Code, the court is obliged to set forth the reasons for its assessment of aggravating and mitigating factors.

Likewise, the court's omission of a statement of reasons for its imposition of consecutive sentences requires a remand. A sentencing court must separately state "the reasons for imposing either a consecutive or concurrent sentence." State v. Yarbough, 100 N.J. 627, 643 (1985). The separate statement is essential for appellate review. State v. Miller, 108 N.J. 112, 122 (1987) (Miller (John)). A remand for resentencing is required when the court fails to set forth a separate statement of reasons for imposing consecutivesentences. Id. at 122. See also State v. Abdullah, 184 N.J. 497, 514-15 (2005) ("[B]ecause the trial court did not explain why it imposed consecutive sentences, we are compelled to remand for the court to place its reasons on the record.").

A remand may be avoided if the "sentencing transcript makes it possible to 'readily deduce' the judge's reasoning." State v. Miller, 205 N.J. 109, 129-30 (2011) (Miller (Dashawn)) (quoting State v. Bieniek, 200 N.J. 601, 609 (2010)).

But those cases are the exception, not the rule. We can safely "discern" the sentencing court's reasoning when the record is clear enough to avoid doubt as to the facts and principles the court considered and how it meant to apply them. To go further, however, may involve speculation about what the sentencing court meant.

[Id. at 130.]

 

Here, the court observed that consecutive sentences were contemplated by the plea agreement, but did not otherwise explain its imposition or refer to the Yarbough factors. We recognize the pressures on trial judges confronted with long sentencing calendars. Ibid. We also can certainly imagine a reasoned basis for the court's decision to impose consecutive terms. However, it is not for us to speculate.

Finally, in reviewing the sentencing transcript, we note that defense counsel made no effort at all to advocate for defendant on the sentencing issue, by arguing mitigating factors or otherwise. Hence, because a remand is required in any event, we direct that on remand, a new sentencing hearing be held.

Remanded for a statement of reasons in support of the order denying the motion to suppress, and for resentencing. We do not retain jurisdiction.

1 Defendant had two prior convictions for possession with intent to distribute in a school zone.

2 Before sentencing, defendant orally stated he wished to withdraw his plea, asserting that he felt pressured and his family was going to retain a new lawyer. Defense counsel responded that he had conferred at length with his client. The court proceeded with sentencing. Defense counsel declined to offer any argument. Defendant only addressed his desire to withdraw his plea.