STATE OF NEW JERSEY v. JONATHAN JACKSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3131-03T43131-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JONATHAN JACKSON,

Defendant-Appellant.

_________________________________________________

 

Submitted November 30, 2005 - Decided

Before Judges Stern, Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 02-11-2627-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (J. Michael Blake,

Assistant Deputy Public Defender, of counsel

and on the brief).

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Gonzalez R. Gonzalez,

Assistant Prosecutor, on the brief).

PER CURIAM

Pursuant to a negotiated plea agreement, defendant pled guilty to second degree robbery and received a ten-year prison sentence with 85% to be served before parole eligibility under the No Early Release Act. In imposing the sentence, the trial judge gave the following statement of reasons:

I find aggravating factors number three, six and nine. Aggravating factor three, is there a risk that you'll commit another offense, and certainly there is based on your record. You have at least seven disorderly persons convictions, three felonies, including two prior robberies and a burglary. In each of them you got 5 years, I believe, in prison. Didn't do any good. Now we have a third robbery.

As the Prosecutor indicated, had they gone for the full amount, you could have gotten a persistent felony offender treatment and gotten a very serious crime. They've given you a robbery amended to second degree and I think the Plea Agreement is more than fair here.

Factor number six has also been proven by the fact that you have an extensive criminal record and it's a serious criminal record.

And factor number nine, there's a need for deterring you and others from violating the law.

Also, in this case, I find that there was factor number one, an aggravating factor that this crime was committed in a heinous, cruel or depraved manner for -- and I -- I should say that the victim -- no. I should say aggravating factor number two The gravity and seriousness on -- on the victim, including the -- whether you knew the victim was particularly vulnerable. In this case, there was someone in -- an old man in a wheelchair, and I find factor number two. You know, he was incapable of res -- he was incapable of resistance due to advanced age, ill health and extreme -- or extreme youth. And so you took advantage of someone is a wheelchair and that's another factor that I would consider, factor number two.

There are no mitigating factors in this case, and these four aggravating factors substantially outweigh, without a doubt, the lack of mitigating factors. And so the presumptive sentence in this case is not enough to deter Mr. Jackson from this kind of behavior. There's a danger to society by the action of Mr. Jackson and there's no doubt in my mind that were he to come out, he'd be involved with other serious crimes, and again, rationalize what he was doing.

And therefore, based on everything I have here, the seriousness of this crime, Mr. Jackson's record, the aggravating factors substantially outweighing, without a doubt, the mitigating factors, the sentence of the Court will be pursuant to the Plea Agreement.

The statement of reasons in the judgment also cited aggravating factor two based on the facts of the case, as well as aggravating factors three, six and nine. It is not clear if aggravating factor nine was based on defendant's criminal record.

On this appeal defendant argues:

I. THE 10 YEAR SENTENCE IMPOSED ON MR. JACKSON AFTER HE PLED GUILTY MUST BE REDUCED TO SEVEN YEARS BECAUSE THE SENTENCING COURT RELIED ON AGGRAVATING FACTORS NOT ADMITTED TO BY MR. JACKSON IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO PROOF BEYOND A REASONABLE DOUBT AND TRIAL BY JURY

A. NEW JERSEY'S ORDINARY SENTENCING SCHEME IS UNCONSTITUTIONAL BECAUSE IT PERMITS AGGRAVATING FACTORS NOT ADMITTED TO BY THE DEFENDANT WHO PLEADS GUILTY TO BE FOUND BY JUDGES BY A PREPONDERANCE OF THE EVIDENCE.

B. THE CONSTITUTIONAL PROHIBITION AGAINST JUDICIAL FACT FINDING TO JUSTIFY AN INCREASED SENTENCE APPLIES TO SENTENCES IMPOSED AFTER A DEFENDANT HAS PLED GUILTY BUT HAS NOT ADMITTED TO THE AGGRAVATING FACTORS RELIED UPON BY THE COURT.

II. THE TRIAL COURT'S FINDING OF AGGRAVATING FACTORS 3, 6 AND 9 VIOLATES ALMENDAREZ-TORRES WHICH PERMITS A JURY TO FIND ONLY THE FACT OF PRIOR CONVICTION.

III. EVEN WERE THIS COURT TO FIND A RECIDIVISM EXCEPTION, IT WOULD HAVE TO VACATE THE SENTENCE BECAUSE THE RECORD DOES NOT SUPPORT A FINDING THAT THE TRIAL COURT WOULD HAVE IMPOSED THE SAME SENTENCE ABSENT THE IMPROPERLY FOUND AGGRAVATING FACTORS.

This case is controlled by the Supreme Court's recent decision in State v. Natale, 184 N.J. 458, 489 (2005), which applies to sentences imposed after guilty pleas as well as matters tried to a jury. Because "defendant received a sentence higher than the presumptive term based on judicial findings other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment." Natale, supra, 184 N.J. at 489-90, and we remand for resentencing "based on the record at the prior sentencing." Id. at 495.

At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Id. at 495-96.]

 
Remanded for resentencing.

In this case the defendant did not expressly waive his right to have the jury make fact-finding, or acknowledge the aggravating factors, for purposes of sentencing. See State v. Anderson, 374 N.J. Super. 419, 421 (App. Div. 2005), discussed in Natale, supra, 184 N.J. at 495 n.12.

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A-3131-03T4

December 12, 2005