State v. Charles S. Thomas

This case can also be found at 195 N.J. 431, 950 A.2d 209.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. Charles S. Thomas (A-62-07)

Argued May 6, 2008 -- Decided June 26, 2008

PER CURIAM

In this case, the Court addresses which offense should be the subject of an extended term sentence where a multiple count conviction is involved.

2 On November 2, 2001, in Union Township, seventy-five-year-old Lore Kraemer was attacked by a man crouching by the front wheel of her car. The man grabbed her arm and stole her purse, containing about $750. The man ran from the scene into an idling station wagon driven by defendant, Charles Thomas. The station wagon, which had been stolen a week earlier, drove off and was quickly pursued by police. In attempting to elude police apprehension, Thomas drove the station wagon at excessive speeds, ramming into other vehicles, including a police vehicle. Defendant drove through a red light, hit another, finally disabling the station wagon. Thomas and his passenger exited the car and ran in different directions. After a foot chase, Thomas was captured and arrested by police in a back yard some two blocks from where he had abandoned the disabled station wagon.

Thomas was convicted by a jury of second-degree robbery, second-degree eluding, third-degree possession of a weapon for an unlawful purpose, fourth-degree criminal mischief, fourth-degree resisting arrest, and third-degree receiving stolen property. Upon application of the prosecutor, Thomas was sentenced to an extended custodial term of eighteen years on the second-degree robbery conviction, subject to the No Early Release Act (NERA), and to a consecutive ten-year term, subject to five years of parole ineligibility, on the second-degree eluding conviction. The remaining counts were ordered to run concurrently and do not affect Thomas sentence or the issues involved in this appeal. In the aggregate, Thomas was sentenced to twenty-eight years with 13.5 years of parole ineligibility.

Thomas appealed his convictions on numerous grounds. The Appellate Division reversed the robbery conviction, affirmed the remaining convictions, and remanded the matter for resentencing. The Supreme Court granted certification and reinstated the robbery conviction, affirmed the remaining convictions, and remanded for consideration of Thomas sentencing arguments. The Appellate Division then remanded the matter to the trial court for resentencing while retaining jurisdiction.

The trial judge resentenced Thomas on the robbery count to an extended term of sixteen years, subject to NERA, and to a concurrent term of ten years, with five years of parole ineligibility, on the eluding conviction. The sentences on the remaining counts were made concurrent. As a result of the resentencing, Thomas was sentenced to an aggregate term of sixteen years with 13.6 years of parole ineligibility.

Thomas appealed and the Appellate Division reversed. Concerned about the length of Thomas NERA sentence, the appellate panel revised the sentence downward by transferring the extended term from the robbery conviction to the eluding conviction. The panel reasoned that Thomas involvement in the robbery as well as the robbery itself did not warrant as much condemnation as his conduct in eluding police. The panel therefore exercised original jurisdiction and sentenced Thomas to an extended term of sixteen years with eight years of parole ineligibility on the eluding conviction and a concurrent term of eight years, subject to NERA, on the robbery conviction. Thomas revised aggregate sentence was sixteen years, with eight years of parole ineligibility.

The Supreme Court granted the State s petition for certification.

HELD: The extended-term-sentencing statute provides that a judge must place on the record his or her reasoning for applying an extended term to a different charge than that sought by the prosecutor. Therefore, this matter must be remanded to the trial court for an explanation of why it declined to accept the prosecutor s application to apply an extended term sentence to the eluding count and instead applied the extended term to the robbery count.

1. Because Thomas appealed his sentence and because his new sentence is not in excess of that originally imposed, double jeopardy is not implicated. (Pp. 3-5)

2. N.J.S.A. 2C:44-3 provides the criteria for extended term sentencing. Procedurally, the statute prescribes that a discretionary extended term may be imposed only on application of the prosecutor, with proper notice given to the defendant. Where multiple offenses are charged, notice should include an identification of the offense with respect to which the prosecutor is seeking an extended term in order to give the defendant fair opportunity to meet that claim. Because it is the prosecutor s choice whether to seek an extended term in the first place, it follows that the trial judge should give weight to the prosecutor s determination in respect of which offense is to be subject to an extended term. That selection is not dispositive, however. If the judge disagrees, he should so state, on the record, along with the reasons for the sentence, why he chose to apply an extended term to a different charge than that sought by the prosecutor. That statement will provide the Appellate Division with the foundation to determine whether the trial judge properly exercised his discretion. (Pp. 5-6)

3. Although the prosecutor made clear during the sentencing hearing that the second-degree eluding count was the focus of her extended term application, the trial judge imposed the extended term on the robbery count, which carried a NERA parole disqualifier. In neither the original sentence nor the resentence did the judge explain his reason for choosing the robbery count instead of the eluding count. Although the Court is sensitive to the appellate panel s desire to avoid a third resentencing procedure, the panel left itself open to the charge that it improperly substituted its judgment for that of the trial judge. Thus, a remand to the trial court for resentencing is required, at which time the trial judge should explain why he declined to accept the prosecutor s application to apply the extended term to the eluding count. (Pp. 6-8)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial judge for proceedings consistent with the principles to which the Court has adverted.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECHHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in this OPINION.

 

SUPREME COURT OF NEW JERSEY

A- 62 September Term 2007

 

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CHARLES S. THOMAS,

Defendant-Respondent.

Argued May 6, 2008 Decided June 26, 2008

 

On certification to the Superior Court, Appellate Division.

 

Hillary K. Horton, Deputy Attorney General, argued the cause for appellant (Anne Milgram, Attorney General of New Jersey, attorney).

 

Daniel V. Gautieri, Assistant Deputy Public Defender, argued the cause for respondent (Yvonne Smith Segars, Public Defender, attorney).

 

PER CURIAM

This is a sentencing appeal. The facts underlying defendant s conviction are set forth in this Court s opinion in State v. Thomas, 187 N.J. 119 (2006), and need not be recounted here.

In brief, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1; second-degree eluding, N.J.S.A. 2C:29-2b; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree criminal mischief, N.J.S.A. 2C:17-3a and -b(2); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a; and third-degree receiving stolen property, N.J.S.A. 2C:20-7. Upon the prosecutor s application, defendant was sentenced to an extended custodial term of eighteen years on the second-degree robbery conviction, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive ten-year term, subject to five years of parole ineligibility, on the second-degree eluding conviction. The remaining counts were ordered to run concurrently and do not affect defendant s overall sentence or the issues involved here. In the aggregate, defendant s sentence was twenty-eight years with 13.5 years of parole ineligibility. Defendant appealed his conviction on numerous grounds.

The Appellate Division reversed the robbery conviction but affirmed the remaining convictions and remanded the case for resentencing. We granted certification and reinstated the robbery conviction, affirmed the remaining convictions, and remanded for consideration of defendant s sentencing arguments. Thomas, supra, 187 N.J. at 138. In turn, the Appellate Division remanded the case to the trial judge for resentencing while retaining jurisdiction.

The trial judge resentenced defendant on the robbery count to an extended term of sixteen years, subject to NERA, and to a concurrent term of ten years, with five years of parole ineligibility, on the eluding count. The sentences on the remaining counts were again made concurrent. As a result, defendant s aggregate sentence was reduced from twenty-eight years with 13.5 years of parole ineligibility to sixteen years with 13.6 years of parole ineligibility.

Defendant again appealed and the Appellate Division reversed. Expressing grave concerns about the length of defendant s NERA sentence, the panel revised the sentence downward by transferring the extended term from robbery to eluding. In ruling, the panel reasoned that defendant s involvement in the robbery and the robbery itself do not warrant as much condemnation as his conduct in the course of eluding the police. The panel therefore exercised original jurisdiction and sentenced defendant to an extended term of sixteen years with eight years of parole ineligibility on the eluding conviction; and to a concurrent term of eight years, subject to NERA, on the robbery conviction. As a result, defendant s aggregate revised sentence was sixteen years, with eight years of parole ineligibility. We granted the State s petition for certification, 192 N.J. 599 (2007), and now reverse.

I

The State essentially argues that the Appellate Division wrongly substituted its own judgment for that of the trial court; erred in minimizing defendant s role in the robbery; and that a persistent offender extended term should be imposed on the most serious crime, in this case the NERA robbery.

Defendant counters that the principle of double jeopardy prevented his resentencing because he had begun to serve the term originally imposed; that, in any event, the Appellate Division properly decided to exercise original jurisdiction to avoid a third resentencing; and that the extended term was correctly imposed on the eluding conviction based on the severity of the offense.

II

We turn first to defendant s double jeopardy claim, which can be disposed of quickly. Plainly, where a defendant files an appeal, courts are permitted to revise a sentence notwithstanding his initial commencement of the sentencing term, providing that any new sentence is in accordance with the substantive punishment standards under the Code and not in excess of the sentence originally imposed. State v. Rodriguez, 97 N.J. 263, 277 (1984). [W]ith the determination of guilt made, the defendant is not subject to the harassment and risk of multiple prosecution the Double Jeopardy Clause was meant to prohibit. State v. Roth, 95 N.J. 334, 344 (1984) (citing United States v. DiFrancesco, 449 U.S. 117, 136, 101 S. Ct. 426, 437, 66 L. Ed. 2d 328, 345 (1980)). Where a defendant mounts a challenge, he has no legitimate expectation of finality with respect to [the] sentence. State v. Haliski, 140 N.J. 1, 7 (1995). That is because [w]hat was sought by the appeal, rather than the relief, if any, obtained, defines what constitutes a legitimate expectation of finality. Id. at 23.

In short, because defendant appealed his sentence and because his new sentence is not in excess of that originally imposed, double jeopardy is not implicated.

III

At the heart of this case is the issue of which offense should be the subject of an extended term sentence where a multiple count conviction is involved. The State argues that the offense with the greatest sentence exposure (here a NERA offense) should be the one subject to an extended term. Defendant avers that the substantively more severe offense should be the focus. Neither party is entirely correct.

N.J.S.A. 2C:44-3 provides the criteria for extended term sentencing. The substantive details of the statute are unimportant because defendant concedes that he is eligible for such sentencing and that an extended term could have been imposed on the eluding count.

Procedurally, the statute prescribes that a discretionary extended term may be imposed only upon application of the prosecutor. N.J.S.A. 2C:44-3. See, e.g., State v. Martin, 110 N.J. 10, 16 (1988); State v. Dunbar, 108 N.J. 80, 87-88 (1987); State v. Gantt, 101 N.J. 573, 580 n.1 (1986). Thus, notice must be filed as provided in the court rules. R. 3:21-4(e). Where multiple offenses are charged, that notice obviously should include an identification of the offense with respect to which the prosecutor is seeking an extended term in order to give the defendant a fair opportunity to meet that claim. Because it is the prosecutor s choice whether to seek an extended term in the first instance, it follows that the trial judge should give weight to the prosecutor s determination regarding which offense is to be subject to an extended term, but that selection is not dispositive. If the judge has reason to disagree, he should state, on the record, along with his reasons for the sentence, why he chose to apply the extended term to a different charge than that sought by the prosecutor. That statement will, in turn, provide the Appellate Division with a foundation to determine whether the trial judge exercised his discretion based upon an application of correct legal principles to the facts. Roth, supra, 95 N.J. at 363.

In this case, the prosecutor s initial motion did not ask for the extended term to be applied to a particular count. At the sentencing hearing, however, the prosecutor made clear that the second-degree eluding count was the focus of her extended term motion. Nevertheless, the trial judge imposed the extended term on the robbery count, which, although also a second-degree offense, carried a mandatory NERA parole disqualifier.

In neither the original sentence nor the resentence did the judge ever explain his reason for choosing the robbery count rather than the eluding count for extended term treatment. That, at least in part, is what led to the appellate panel s exercise of original jurisdiction.

We are sympathetic to the appellate panel s desire to avoid a third resentencing procedure. In exercising original jurisdiction, however, the court left itself open to the charge that it overstepped its bounds and substituted its judgment for that of the trial judge. Indeed, it is well-settled that appellate courts may only disturb a sentence if the lower court s exercise of discretion is clearly mistaken. State v. Kromphold, 162 N.J. 345, 355 (2000) (quotation omitted). If the appellate panel finds that there has been such an error, a remand to the trial court for resentencing is strongly to be preferred. Ibid. (quoting State v. Jarbath, 114 N.J. 394, 410-11 (1989)).

We agree. Therefore, we reverse and remand the matter to the trial judge for an explanation of why he declined to accept the prosecutor s application to apply the extended term to the eluding count. Presumably, the judge had a reason for what he did. It is now time for him to declare it.

The judgment under review is reversed. The matter is remanded to the trial judge for proceedings consistent with the principles to which we have adverted.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in this opinion.

 

SUPREME COURT OF NEW JERSEY

NO. A- 62 SEPTEMBER TERM 2007

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CHARLES S. THOMAS,

Defendant-Respondent.

DECIDED June 26, 2008

Chief Justice Rabner PRESIDING

OPINION BY Per Curiam

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

CHECKLIST

REVERSE AND REMAND

CHIEF JUSTICE RABNER

X

JUSTICE LONG

X

JUSTICE LaVECCHIA

X

JUSTICE ALBIN

X

JUSTICE WALLACE

X

JUSTICE RIVERA-SOTO

X

JUSTICE HOENS

X

TOTALS

7