STATE OF NEW JERSEY v. ERIC C. RANGEL

NOT FOR PUBLICATION WITHOUT THE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.

ERIC C. RANGEL,1

Defendant-Appellant.

__________________________

December 15, 2015

Submitted November 16, 2015 Decided

Before Judges Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-12-1534.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark P. Stalford, Designated Counsel, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Following a jury trial, defendant Eric C. Rangel was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1(a)(3) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count five); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count six).2 After merging counts two and three with count one, Judge Salem Vincent Ahto sentenced defendant on count one to a twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count two, the judge imposed a consecutive seven-year term of imprisonment subject to NERA. The judge awarded defendant 810 days of jail credit.

Defendant appealed his conviction and sentence. We reversed the convictions on counts one and two, entered a judgment of acquittal on those counts, affirmed the convictions on counts three, five and six, and remanded for re-sentencing on those counts. State v. Rangel, 422 N.J. Super. 1, 12 (App. Div. 2011). Our Supreme Court affirmed our judgment, dismissed counts one and two, and remanded for re-sentencing on counts three, five and six. State v. Rangel, 213 N.J. 500 (2013).

Prior to re-sentencing, on May 1, 2013, defendant filed a motion to disqualify Judge Ahto, who was then retired and serving on recall. The judge denied the motion and, on December 13, 2013, re-sentenced defendant on count three to a ten-year term of imprisonment subject to NERA. On count five, the judge imposed a consecutive seven-year term of imprisonment subject to NERA, and on count six, imposed a concurrent 365 days with credit for time served. The judge awarded defendant 2427 days of jail credit. This appeal followed.

On appeal, defendant raises the following contentions

POINT I THE DENIAL OF DEFENDANT'S MOTION TO DISQUALIFY THE SITTING JUDGE BASED ON AGE REQUIRES A NEW RE-SENTENCING HEARING.

A. The Sitting Judge was Constitutionally Disqualified From Serving as a Superior Court Judge.

B. The Recall Statute Violates the Separation of Powers Doctrine by Encroaching on the Appointment Power of the Executive Branch.

C. The Sitting Judge had an Interest in the Outcome of [Defendant's] Motion and was Therefore Disqualified From Hearing it.

POINT II ERRORS MADE AT THE RESENTENCING HEARING REQUIRE A REMAND FOR A NEW RESENTENCING HEARING.

A. Counts III and V should be Merged and a Single Sentence Imposed on the Merged Conviction.

B. The Court Erred in Imposing Consecutive Sentences on Counts III and V.

C. The Court Erred in the Finding and Weighing the Aggravating and Mitigating Factors.

POINT III THE TRIAL COURT INCORRECTLY DESIGNATED ALL OF DEFENDANT'S TIME SPENT IN CUSTODY ON THESE CHARGES PRIOR TO THE RESENTENCING AS JAIL CREDIT WHICH SHOULD BE CORRECTED TO REFLECT BOTH JAIL AND PRIOR SERVICE CREDIT.

The Court's holding in State v. Buckner, 223 N.J. 1 (2015), renders moot defendant's contentions in Point I. Because the State does not challenge defendant's contention in Point III, that he is entitled to 810 days of jail credit and 1617 days of service credit, we remand for correction of the judgment of conviction (JOC) to reflect the appropriate credits. We focus our review on defendant's challenge to his sentence in Point II.

The charges against defendant stemmed from his brutal attack of P.F. The Court described what happened as follows

In the early morning hours of April 22, 2007, P.F., then eighteen years old, left a birthday party in Lake Hiawatha and began walking home. Part of the way she was accompanied by two friends, who eventually broke off and went in different directions. Afterwards, P.F. noticed a stranger, defendant Eric Clemente Rangel, rushing toward her while angrily yelling in Spanish. P.F. ran and dialed 9-1-1 with her cell phone. She told the dispatcher that she was being pursued by a man and gave her location. While speaking with the dispatcher, P.F. was attacked from behind by defendant. He pummeled her face with his fists, causing her to fall and strike her head on the concrete pavement or a pole. As she lay on the ground, defendant continued to punch her face as she fought back. P.F. grew weak from the struggle and believed that "one more hit would just [] kill [her]. "Fearing for her life, she stopped resisting, "closed [her] eyes[,] and laid there defenseless." As P.F. lay motionless, defendant ripped off her pants and underwear.

Defendant then touched P.F.'s vagina with his fingers. P.F. next heard defendant remove his belt and felt what she thought was his penis touching the lips of her vagina. At about that moment, police officers arrived and found defendant kneeling over P.F. Defendant hurriedly pulled his pants up and attempted to flee, but was immediately apprehended and taken into custody. P.F. was transported by ambulance to Saint Claire's Hospital. There, she was treated by an emergency-room physician and examined by a nurse specializing in sexual-abuse cases. Her nose was bloodied and swollen, and her mouth and lips were swollen too. She had suffered a "very unusual" bone fracture at the base of the nose. She also had a large bump on her head and felt pain there. P.F., a high school senior, missed a number of school days and could not participate in physical education for the remainder of the year.

[Rangel, supra, 213 N.J. at 503-04.]

At re-sentencing, Judge Ahto found the following aggravating factors: N.J.S.A. 2C:44-1(a)(1), "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;" N.J.S.A. 2C:44-1(a)(2), "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;" N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will commit another offense;" and N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant and others from violating the law." The judge found mitigating factor N.J.S.A. 2C:44-1(b)(7), "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense." The judge made detailed findings as to each factor and determined that the aggravating factors outweighed the mitigating factor.

Judge Ahto declined to merge defendant's convictions for sexual assault and aggravated assault. The judge noted that the Legislature created these distinct offenses to protect separate interests by imposing separate and distinct punishments for each offense, and that merger would frustrate the sentencing scheme of the New Jersey Code of Criminal Justice. The judge concluded as follows

Sexual assault only require[s] penetration by the use of physical force, as defined in [State in the Interest of M.T.S., 129 N.J. 422, 444 (1992)], that's a far cry from the vicious beating and the injuries the victim sustained.

The degree of harm to [P.F.] went far beyond what was necessary to commit the sexual assault or to commit an act of penetration. It was . . . a separate act of violence far more than just enough to subdue or immobilize the victim.

The merger would not address adequately the profound and distinct [injuries], both physical and mental sustained by the victim.

After reviewing the Yarbough3 factors, the judge imposed a consecutive sentence on the aggravated assault conviction. The judge found as follows

The crimes . . . involve separate acts of violence and continuing threats of violence that were curtailed only by the [police officers] who [were] at the scene. The crimes and their objectives were independent, namely the offense of aggravated assault was to subdue the victim, render her somewhat immobile. The sexual assault was obviously for the defendant's self[-]gratification. But more importantly, an act of sexual defilement.

The convictions, as evidenced by the jury's findings were numerous. There can be no free crimes in a system for which the punishment shall fit the crime. Consecutive sentences are, therefore, and in my view appropriate in relation to the sexual assault and the aggravated assault.

On appeal, defendant argues that because he committed one act of assaulting P.F., which constituted the basis for his convictions for sexual assault and aggravated assault, Judge Ahto erred in not merging the convictions and imposing a single sentence. Alternatively, defendant argues that because he committed one single act of violent behavior toward one victim in a short continuous period of time, the judge erred in imposing a consecutive sentence. Defendant also argues that the judge erred in his findings and weighing of aggravating and mitigating factors.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors found by the sentencing court 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. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

We discern no abuse of discretion in defendant's sentence.

The guiding principle in merger analysis is that a defendant who has committed one offense cannot be punished as if he committed two offenses. State v. Tate, 216 N.J. 300, 306 (2013). The parameters for merging offenses are set forth in N.J.S.A. 2C:1-8, which provides as follows, in pertinent part

a. Prosecution for multiple offenses; limitation on convictions. When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if

(1) One offense is included in the other, as defined in subsection d. of this section;

. . . .

d. . . . An offense is so included when

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

. . . .

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

The standard for merger of offenses under N.J.S.A. 2C:1-8, "'providing that offenses are different when each requires proof of facts not required to establish the other,'" is considered "'mechanical.'" Id. at 307 (quoting Hill, supra, 182 N.J. at 542). Accordingly, the standard established in State v. Davis, 68 N.J. 69, 77 (1975), is more flexible, preferred, and therefore the governing standard. Ibid. (quoting Hill, supra, 182 N.J. at 542).

Under Davis, the court must analyze

[T]he evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.

[Ibid. (quoting Davis, supra, 68 N.J. at 81).]

This flexible approach requires the court to focus on "'the elements of crime and the Legislature's intent in creating them,' and on 'the specific facts of each case.'" State v. Tate, 216 N.J. 300, 306 (2013) (quoting State v. Hill, 182 N.J. 532, 542 (2005)). "In determining legislative intent, we analyze the statutes to determine whether the Legislature intended to protect different interests, and whether merger makes sense in the context of the [New Jersey Code of Criminal Justice merger provision], N.J.S.A. 2C:1-8." State v. Cole, 120 N.J. 321, 327 (1990). Merger is not required where there are "clear statutory differences illustrating legislative intent to fractionalize a course of conduct." Tate, supra, 216 N.J. at 312 (citing State v. Miller, 108 N.J. 112, 120-21 (1987)).

The offenses at issue here have different interests protected by each statute. A person is guilty of sexual assault if he "uses physical force or coercion, but the victim does not sustain severe personal injury[.]" N.J.S.A. 2C:14-2(c)(1). This statute focuses on penetration and seeks to protect a victim from an act of sexual defilement by physical force or coercion where the victim sustains no personal injury. By comparison, "[a] person is guilty of aggravated assault if he . . . causes [serious bodily] injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" N.J.S.A. 2C:12-1(b)(1). This statute seeks to protect a victim from serious bodily injury. The Legislature, in creating these distinct offenses, intended to protect separate interests, by imposing separate and distinct punishment for separate and distinct offenses. Cole, supra, 120 N.J. at 330. Accordingly, Judge Ahto correctly determined that merger was not appropriate.

The imposition of a consecutive sentence was appropriate. In Yarbough, supra, 100 N.J. 627 at 639, the Court identified the relevant criteria for determining when consecutive, as opposed to concurrent, sentences should be imposed. The Court noted that it is senseless to give a criminal free crimes. Instead, a sentencing court should consider the factual content of the crimes, including whether or not: (1) the crimes and their objectives were predominantly independent of each other; (2) the crimes involved separate acts of violence or threats of violence; (3) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (4) any of the crimes involved multiple victims; and (5) the convictions for which the sentences were imposed were numerous. Id. at 644. These five factors are to be applied qualitatively, rather than quantitatively. A consecutive sentence can be imposed, even if a majority of the Yarbough factors support concurrent sentences. State v. Carey, 168 N.J. 413, 427-28 (2001).

Here, the sexual assault and aggravated assault had different objectives, the first being to sexually defile P.F. and the second being to cause her serious bodily injury. Each offense was separate and distinct and required its own punishment to address the particular harm to P.F. When all of the sentencing factors are viewed, either qualitatively or quantitatively, Judge Ahto properly imposed a consecutive sentence.

We have considered defendant's contention that Judge Ahto erred in his findings and weighing of aggravating and mitigating factors in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We are satisfied that the judge did not violate the sentencing guidelines, the record amply supports his findings, and the sentence is clearly reasonable and does not shock our judicial conscience.

Defendant's sentence is affirmed. We remand to the trial court to correct the JOC to award defendant 810 days of jail credit and 1617 days of service credit.

1 Also referenced in the record as Eric Clemente Rangel.

2 Prior to the trial, the State dismissed count four charging defendant with third-degree criminal restraint, N.J.S.A. 2C:13-2(b).

3 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 465 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed 2d 308 (1986).