STATE OF NEW JERSEY v. DAVID WILDER

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1799-04T41799-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

 
DAVID L. WILDER,

Defendant-Appellant.

__________________________________

Submitted: October 3, 2006 - Decided: November 1, 2006

 
Remanded by Supreme Court: January 31, 2008

Resubmitted: March 6, 2008 Decided:

Before Judges Lintner, S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-07-0949.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

On remand from the Supreme Court, State v. Wilder, 193 N.J. 398, ___ (2008) (slip op. at 28 n. 3), we consider defendant's contentions that the twenty-three-year sentence and the concurrent five-year sentence were manifestly excessive or, in the event they were not excessive, the sentences must be reconsidered under State v. Natale, 184 N.J. 458 (2005). We conclude that Natale and State v. Dalziel, 182 N.J. 494 (2005), both of which were decided after the sentencing in this case, require that we remand for reconsideration of the sentence.

Defendant urges that the trial judge erred in concluding that there was only one mitigating factor under N.J.S.A. 2C:44-1(b), the hardship that would be suffered by defendant's dependent children under N.J.S.A. 2C:44-1(b)(11). Defendant further contends the court erred in finding two of the three aggravating factors, prior history under N.J.S.A. 2C:44-1(a)(6) and risk of reoffense under N.J.S.A. 2C:44-1(a)(3), in light of defendant's conduct over the seven years preceding the subject crime and the judge's acknowledgment that defendant had become a role model in the community since he was released from prison. Defendant asserts that the judge should have found that he led a law-abiding life for a significant period of time under N.J.S.A. 2C:44-1(b)(7), his conduct was the result of circumstances unlikely to recur under N.J.S.A. 2C:44-1(b)(8), his character and attitude were such that he was unlikely to commit another offense under N.J.S.A. 2C:44-1(b)(9), and he was particularly likely to respond affirmatively to probationary treatment under N.J.S.A. 2C:44-1(b)(10).

We need not relate the facts of the case as they were thoroughly discussed in our initial decision, State v. Wilder, No. A-1799-04 (App. Div. Nov. 1, 2006) (slip op. at 2-10), and in Wilder, supra, 193 N.J. at ___-___ (slip op. at 3-8). Before addressing the merits of the issues raised on appeal, we note that defendant did not argue mitigating factor (10) at sentencing and, thus, we will not consider it on appeal because it does not go to the jurisdiction of the court nor concern an issue of public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'") (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

At sentencing defendant argued that mitigating factor (7) should be found because defendant was married; maintained a stable household; supported his children and stepchildren; worked continuously since his release from prison; owned a luncheonette and a business preparing lunches for young school children; was involved in the basketball league, youth centers and church activities in Paterson; and had been an upstanding member of his community. In short, "Mr. Wilder, for a long time leading up to this offense, had done everything to turn his life around and contributed to his family and the community." The prosecutor acknowledged that defendant had turned his life around but argued that the evidence of defendant's guilt was strong.

Defendant next urged that mitigating factor (8) should be found because "this whole offense was the result of a series of events between people involved in illegal drug dealing that ended up with one of their cars smashing into Mr. Wilder's [new boot] store." He argued that "[i]t would not be reasonable to believe that those circumstances, or circumstances like them would ever occur again." He pointed out that the events preceding the crime were not brought about by defendant's conduct and that the crime was "not part of a pattern of behavior on Mr. Wilder's part."

Defendant also submitted that mitigating factor (9) existed because his character and attitude indicated that he was unlikely to commit another offense. He argued that the crime "was an aberrational incident that resulted from a tragic set of unfortunate circumstances." He pointed out that he had been trying to make a better life for his family. Many persons spoke at his sentencing and many wrote to the judge in advance of the sentencing to attest to his good character and his attitude.

As to the aggravating factors, defendant argued with respect to his prior history that he committed three drug-related offenses over a four-year "aberrational" period of time ending with an offense in 1991, which was eleven years prior to the current offense. None of the prior offenses involved any violence, they were all third-degree crimes and the prior history should not be considered an aggravating factor. As to the risk of reoffense, defendant commented that "I have already addressed that with regard to a mitigating factor, and I don't believe it is an appropriate aggravating factor." In conclusion, defendant argued that the mitigating factors outweighed the aggravating factors and that the minimum sentence of ten years should be imposed.

In sentencing defendant the judge first ruled on the State's motion for an extended-term sentence. He observed:

The normal, the ordinary range for aggravated manslaughter is ten years to thirty years. The law says that the presumptive sentence should be twenty years. And that's pretty much where a Judge starts, 20 years, 85 percent of that time to be served without parole. That is what's called the ordinary term.

....

The law says to the Judge, when you're deciding whether or not to move above the 20-year presumptive sentence or below the 20-year presumptive sentence, there are factors for you to consider.

The most important factor the Court should consider is not the person, but the offense. And with regard to the range, the most important factor is the criminal history. Here, there are three prior felony convictions.

So, [defense counsel] asks me . . . to impose ten years. If I impose that sentence the Appellate Division would reverse it, almost just reading the first page of the appeal. That sentence . . . couldn't be sustained . . . if the State took an appeal and I'm sure they would.

So, the range that the Court is looking at is something from 20 years, 85 percent of the time to be served without parole to life imprisonment.

However, the judge concluded that an extended-term sentence was not appropriate.

I'm not going to grant the State's application for an extended term because I'm satisfied that the range for this man under the ordinary term is appropriate, more than appropriate for the sentence that should be imposed. So, while the criteria are there and admitted and the eligibility is certainly there, I'm not going to grant the application for an extended term under all of the circumstances involved, as I have tried to lay them out in an overview way, as I've done now.

Those circumstances were that defendant indisputedly had turned himself around, that in the seven years since he was paroled he had been remarkable and had become a role model for Paterson, a family man and a productive member of the community. The judge also stated that he was aware that he was sentencing a man who was forty-six years old and took that into account in denying the motion for an extended term.

The judge then considered the statutory aggravating and mitigating factors.

In reviewing the aggravating factors, I find that number three applies, the risk that the defendant will commit another offense, by reason of the drug history. Number six applies, that is the most compelling factor, the extent of the defendant's prior criminal record by reason of the three prior felony convictions for drug dealing. Number nine applies, the need for deterring the defendant and others from violating the law and that's found in almost every single case.

On the mitigating side, I'm going to allow one mitigating factor and that is that the imprisonment of the defendant would entail a hardship . . . to his dependents and family. Not to himself, but . . . to his dependents and relatives.

The judge concluded that the aggravating factors preponderated.

On the first-degree aggravated manslaughter conviction, the judge imposed a sentence of twenty-three years of which eighty-five percent would have to be served before defendant was eligible for parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the third-degree conviction for endangering an injured victim, the judge imposed a sentence of five years to be served consecutively as required by N.J.S.A. 2C:12-1.2(d).

In determining the appropriate sentence to be imposed, a sentencing court must consider the aggravating and mitigating factors enumerated in N.J.S.A. 2C:44-1(a) and (b), balance the aggravating factors against the mitigating factors, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 359 (1987).

Both the aggravating and the mitigating factors must be based on "competent credible evidence." State v. Roth, 95 N.J. 334, 364 (1984). We may not substitute our judgment for that of the trial court; rather, we may only change a sentence if it is one that "reasonable people may not reasonably make on the basis of the evidence presented." Id. at 365. An error in sentencing must be so clear as to "shock[] the judicial conscience" in order to be modified. State v. Ghertler, 114 N.J. 383, 388 (1989) (internal quotation marks omitted). The appellate court's role is to determine:

(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.

[State v. Megargel, 143 N.J. 484, 493 (1996) (citing Roth, supra, 95 N.J. at 363-65).]

If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, we must affirm the sentence. State v. Jabbour, 118 N.J. 1, 6 (1990).

Subsequent to the imposition of sentence in this case, the Supreme Court decided Dalziel, supra, 182 N.J. 494. One of the questions presented was whether the sentencing judge could exercise discretion to refuse to consider certain mitigating factors urged by Dalziel. Id. at 499. The Court rejected the suggestion that the words "may properly consider" in the introductory language to N.J.S.A. 2C:44-1(b) empowered a sentencing judge to simply decline to consider mitigating factors established in the evidence before the judge. Id. at 504-05. The Court held,

Such a reading of the statute flies in the face of our sentencing scheme and of the well-established rule that aggravating and mitigating factors must be supported by credible evidence. A corollary of that rule is that where they are so supported, they must be part of the deliberative process.

[Id. at 505 (internal citation omitted).]

In this respect, Dalziel did not establish a new rule of law, but even if it did announce a new rule, this holding is entitled to pipeline retroactivity because it does not disadvantage a defendant. Natale, supra, 184 N.J. at 490-92.

It was undisputed at sentencing that defendant had completely turned himself around since he was released from prison years before the current offenses. In fact, in denying the State's motion for an extended term, the judge found that defendant had turned himself around, that he had been remarkable since he was paroled and had become a role model for Paterson, a family man and a productive member of the community. Yet, the judge did not find mitigating factor (7), "[t]he defendant . . . has led a law-abiding life for a substantial period of time before the commission of present offense." N.J.S.A. 2C:44-1(b)(7). It was contrary to Dalziel and requires resentencing.

Additionally, the judge did not find mitigating factor (8), "[t]he defendant's conduct was the result of circumstances unlikely to recur," and (9), "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense," N.J.S.A. 2C:44-1(b)(8) and -1(b)(9), which certainly find support in the record made at the time of sentencing. The circumstances that triggered the crime seem to be out of the ordinary and many people testified to defendant's good character. Yet the judge did not explain why he decided not to find these two mitigating factors. On resentencing, if these mitigating factors are not found to be supported by the evidence presented at the original sentencing, the judge should explain why the record does not support them so that any further appellate review will have the benefit of the judge's reasoning.

Even if the judge had found all of the requested mitigating factors, resentencing would still be required under Natale because the sentence was based on the then-existing presumptive term of twenty years. Natale, supra, 184 N.J. at 488, 495-96. As a result, the matter is remanded to the sentencing judge for resentencing in accordance with this opinion.

Remanded.

The State did not cross-appeal from the denial of its extended-sentence motion.

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A-1799-04T4

March 20, 2008