STATE OF NEW JERSEY v. LEON CLARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6118-02T4A-6118-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEON CLARK,

Defendant-Appellant.

____________________________________

 

Submitted October 19, 2005 - Decided February 6, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

01-03-1451-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Daniel V. Gautieri,

Assistant Deputy Public Defender, of counsel

and on the brief).

Paula T. Dow, Acting Essex County Prosecutor,

attorney for respondent (Gary A. Thomas,

Special Deputy Attorney General, of counsel

and on the brief).

PER CURIAM

In Indictment 2001-4-1596, filed on April 6, 2001, an Essex County Grand Jury charged defendant, Leon Clark, on sixteen counts that arose from events on January 19, 2001, involving three victims. Specifically, defendant was indicted on three counts each of first-degree attempted murder, N.J.S.A. 2:5-1 and 2C:11-3 (counts one, five, and nine); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts two, six, and ten); first-degree robbery, N.J.S.A. 2C:15-1 (counts three, seven, and eleven); and third-degree terroristic threats, N.J.S.A. 2C:12-3a (counts four, eight, and twelve). Defendant was also charged with third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b (count thirteen), second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count fourteen), fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f (count fifteen), and third-degree resisting arrest, N.J.S.A. 2C:29-2 (count sixteen). Prior to the trial, the judge granted the prosecutor's motion to dismiss counts one and five, which charged attempted murder of two of the victims, Ibelia Chauca and Jose Rodriguez.

The jury found defendant not guilty on count nine, the charge of attempted murder of Ramiro Chuya. On counts two, six, and ten, each charging second-degree aggravated assault of a different victim, the jury found defendant guilty of the lesser-included offense of fourth-degree aggravated assault. On count sixteen, the jury found defendant not guilty of third-degree resisting arrest, but guilty of the lesser-included disorderly persons offense of resisting arrest. On all remaining counts, the jury found defendant guilty.

The judge granted the State's application to sentence defendant to an extended term as a persistent offender. The judge noted that defendant was eligible by virtue of his criminal record and concluded that an extended term was appropriate based upon the facts of the case, the need to protect the public, and defendant's poor response to prior noncustodial efforts to rehabilitate him.

The judge determined that defendant's sentences on all charges would run concurrently, chiefly on the basis that all arose out of the same incident. In assessing the proper sentence to impose, the judge found three aggravating factors and one mitigating factor. Referring to the aggravating factors set forth in N.J.S.A. 2C:44-1a, the judge found that factors three, "the risk that the defendant will commit another offense," six, "the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and nine, "the need for deterring the defendant and others from violating the law," applied. See N.J.S.A. 2C:44-1a(3), (6), and (9). The judge found one mitigating factor, the relative youth of the defendant. See N.J.S.A. 2C:44-1b(13). The judge found that the aggravating factors did not significantly outweigh the sole mitigating factor, and imposed an extended term sentence of thirty-five years on count eleven, first-degree robbery, a sentence below the then presumptive extended term of fifty years imprisonment for a first-degree count. See N.J.S.A. 2C:43-7a(2); 2C:44-3a; 2C:44-1f(1). Presumptive terms have since been invalidated by State v. Natale, 184 N.J. 458, 487 ("Natale II"). The judge did not impose a parole disqualifier on defendant's sentence on count eleven.

Based on finding that the aggravating factors did outweigh the only mitigating factor (although not significantly), the judge imposed base terms above the presumptives, and defendant received the following concurrent terms: sixteen months on counts two, six, and ten (fourth-degree aggravated assault); twenty years on counts three and seven (first-degree robbery); four and one-half years on counts four, eight, and twelve (third-degree terroristic threats); four and one-half years on count thirteen (third-degree unlawful possession of a weapon); nine years on count fourteen (second-degree possession of a weapon for an unlawful purpose); sixteen months on count fifteen (fourth-degree possession of hollow point bullets); and three and one-half months on count sixteen (disorderly persons resisting arrest). The No Early Release Act (NERA) applied to counts three and seven and to the first twenty years of the sentence on count eleven. See N.J.S.A. 2C:43-7.2a, 2C:43-7.2d. Accordingly, those sentences were subject to a period of parole ineligibility of eighty-five percent. In addition, the judge determined that the sentences on counts two, three, six, seven, ten, and the first twenty years on count eleven all were subject to the minimum parole disqualifier set forth in the Graves Act, one-third of the base term. See N.J.S.A. 2C:43-6c. The judge also assessed appropriate fines and penalties. Contrary, however, to the judge's oral pronouncement of sentence, the judgment of conviction provides that defendant's sentence on count sixteen is to run consecutively. That error must be corrected.

The evidence adduced at trial revealed the following facts. On the evening of January 19, 2001, Ibelia Chauca, her husband, Ramiro Chuya, and her uncle, Jose Rodriguez, were on their way home from their part-time cleaning jobs. After Chauca and her husband entered the vestibule at the entrance of the apartment building in Orange, they turned around to discover that defendant had his arm wrapped around Rodriguez and a gun pointed to his head. Defendant demanded money from the victims, and the victims turned over what little money they were carrying. Between them, they had less than four dollars. The gun was fired, but it jammed, rendering it temporarily inoperable.

Immediately after the shot was fired, Rodriguez fell to the floor of the vestibule, clutching his head in shock. Chauca tried to escape, but defendant moved to hit her in the head with the gun. Chuya was able to cushion the blow to his wife somewhat by extending his hand between the gun and her head. Next, a struggle ensued between Chuya and defendant, with Chuya attempting to wrest the gun away from defendant. Defendant pointed the gun at Chuya's head, chest, and legs, saying that he wanted to kill him. Chauca implored her uncle to assist Chuya, and Rodriguez joined in the struggle. During this struggle, Chauca was able to escape. She eventually flagged down Police Officer Schneider of the Orange Police Department, who was traveling with his partner in a police car, and they responded to the apartment building.

As Chauca was trying to contact the police, the struggle between Chuya, Rodriguez, and defendant continued. Eventually, Chuya and Rodriguez were able to take the gun from defendant, and the two restrained defendant in the vestibule. Rodriguez then placed the gun in his jacket pocket. Minutes later, the officers arrived at the apartment building. When they entered the vestibule, Rodriguez handed the gun over to Officer Schneider. As the police officers attempted to place defendant under arrest, he began swinging his arms. Eventually, the officers subdued him, handcuffed him, and took him away.

On appeal, defendant makes these arguments:

POINT I

THE PROSECUTOR COMMITTED MISCONDUCT BY DISPARAGING THE DEFENSE CLAIM THAT GUNPOWDER-RESIDUE TESTING SHOULD HAVE BEEN CONDUCTED TO DETERMINE WHO HAD FIRED THE HANDGUN AND BY VOUCHING FOR THE CREDIBILITY OF HIS WITNESSES.

POINT II

THE SENTENCE IS ILLEGAL AS: (1) THE PERSISTENT-OFFENDER EXTENDED-TERM SENTENCE VIOLATES BLAKELY v. WASHINGTON PRINCIPLES BECAUSE THE FINDING THAT SUCH A TERM WAS NECESSARY FOR THE PROTECTION OF THE PUBLIC WAS NOT MADE BY A JURY; (2) THE SENTENCES IN EXCESS OF THE PRESUMPTIVE TERM VIOLATE BLAKELY AND STATE v. NATALE. IN ADDITION, THE JUDGMENT OF CONVICTION ERRONEOUSLY STATES THAT A CONSECUTIVE SENTENCE WAS IMPOSED FOR RESISTING ARREST. ALTERNATIVELY, THE COURT ABUSED ITS DISCRETION IN IMPOSING THE EXTENDED TERM.

A. The Extended-Term Sentence Violates Blakely Principles.

B. The Court Abused its Discretion in Imposing an Extended Term.

C. The Sentences in Excess of the Presumptive Terms Must Be Reduced Pursuant to Natale.

D. The Remedy to the Blakely Problem is to Re-sentence Clark to the Presumptive, Ordinary Term.

1. The Impropriety of Judicially Rewriting the Statutes.

2. A Remand for a Jury Trial on the Aggravating Factors or Extended-Term Eligibility Factors Would Violate Double Jeopardy.

E. The Judgment of Conviction is Inconsistent with the Sentence Pronounced in Court.

With the exception of Point II E, we reject those arguments.

I

We first address defendant's claims of prosecutorial misconduct. A conviction will be reversed based on a prosecutor's misconduct during summation only "where the prosecutor's misconduct was so egregious that it deprived defendant of a fair trial." See State v. Frost, 158 N.J. 76, 83 (1999). Prosecutors are afforded broad latitude to make forceful closing arguments, but the scope of the argument must be confined to the evidence presented at trial. See id. at 82-83; State v. Bogen, 13 N.J. 137, 140, cert. denied sub nom., Lieberman v. New Jersey, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953).

First, defendant alleges that the prosecutor improperly disparaged the argument by defense counsel that the police should have conducted "primer-residue testing." Next, defendant objects to the prosecutor's remarks that tended to bolster the credibility of the State's witnesses, the victims.

Prosecutors may properly critique the arguments raised by the defense if they confine themselves to the facts adduced at trial. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub nom., State v. Pantoja, 169 N.J. 610 (2001). "It is not improper for the prosecution to suggest that the defense's presentation was imbalanced and incomplete." State v. Timmendequas, 161 N.J. 515, 593 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Defendant objects to the following statements made during the prosecutor's summation:

What else does [defense counsel] bring up? Primer residue testing. I ask you what is primer residue testing? I don't know. Detective-Sergeant Mosby didn't know. The Orange Police Department don't [sic] conduct this test. What do we know about this test?

. . . .

What is primer residue testing? What do they do? Is it reliable?

. . . .

I ask you what is primer residue testing, and, if it's so important, why does [defense counsel] place it in front of you and then just leave it hanging[?]

The prosecutor's statements were made in direct response to the arguments raised by defense counsel during her summation.

Defendant also objects to the prosecutor's remarks that characterized the victims as being exploited and helpless and challenges the prosecutor's statements regarding the witness's credibility, such as:

And I'd ask you what reason does Ibelia Chauca have to lie to you? They've already[,] according to Leon Clark[,] gotten over on the police. They've already scammed the police. They've already gotten past that it's not their weapon. They have no motivation to come here and lie to [you] . . . . [I]f you believe his story, they don't need to come here anymore. They've already con [sic] the police officers as Mr. Leon Clark would have you believe.

. . . .

I'll give you a reason why Ibelia Chauca may do such a thing.

She's in a little vestibule five foot by eight, and a gun goes off, and she's scared for her life. The one event that she remembers more than any other she places earlier in the proceeding . . . . It's such a horrifying event to her, she places it ahead of the other events because that's what she remembers the most.

. . . .

I submit these three victims with unblemished records have no reason to lie to you.

The prosecutor did go beyond the bounds of the evidence adduced at trial. As defendant correctly points out, the prosecutor referred to the victims as "Ecuadorian day laborers" when they never referred to themselves as "day laborers"; rather they described themselves as part-time employees. In addition, the prosecutor remarked that Detective-Sergeant Mosby was unfamiliar with primer residue testing, despite that witness's testimony to the contrary. But defense counsel did not object to either statement, and the failure of defense counsel to raise a timely objection "in the atmosphere of the trial [may demonstrate that] the defense did not believe that the prosecutor's remarks were prejudicial." State v. Wilson, 57 N.J. 39, 51 (1970). These remarks were hardly so egregious to have deprived defendant of a fair trial, and therefore do not warrant reversal of his convictions. See Frost, supra, 158 N.J. at 83.

II

Defendant challenges the decision to impose an extended term as a violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000) ("[O]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").

In Blakely v. Washington, 542 U.S. 296, 304, 124 S. Ct. 2531, 2538, 159 L. Ed. 2d 403, 414-15 (2004), the Supreme Court of the United States held that Washington State's sentencing scheme violated the Sixth Amendment because it authorized sentencing judges to issue enhanced sentences based solely upon judicial findings of aggravating facts. In Natale II, the Court held that New Jersey's sentencing code must comply with Blakely. Thus a defendant cannot be sentenced to a term greater than the statutory maximum authorized by the jury verdict or the facts admitted by a defendant in his guilty plea. 184 N.J. at 481.

Recently, the Supreme Court of New Jersey considered a challenge to a mandatory extended term. See State v. Franklin, 184 N.J. 516 (2005). In Franklin, the defendant was convicted of second-degree manslaughter in connection with the shooting of his estranged wife's paramour. Id. at 521, 524. The same jury that convicted defendant of manslaughter inexplicably acquitted him on all charges relating to the possession of a firearm. Id. at 524. Under N.J.S.A. 2C:43-6c (the Graves Act), if a trial judge finds that a defendant committed a previous Graves Act offense, and that the defendant also used a firearm during the commission of the instant offense, the judge is required to sentence the defendant to an extended term sentence. See Franklin, supra, 184 N.J. at 529-30; N.J.S.A. 2C:43-6c. In Franklin, the judge found that the defendant was a repeat offender under the Graves Act, and sentenced him accordingly. Franklin, supra, 184 N.J. at 525 n.2.

The Court vacated the extended term in Franklin because the judge and not the jury made a finding that the defendant was armed with a firearm when he committed the crime for which he was being sentenced. Id. at 540. The sentence therefore violated the defendant's rights to due process and trial by jury. Ibid.

Under N.J.S.A. 2C:44-3a, the judge has discretion to grant the State's application for an extended term. In pertinent part, N.J.S.A. 2C:44-3 provides that:

[t]he court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second, or third degree to an extended term of imprisonment if it finds one or more of the grounds specified in subsection a., b., c., or f. of this section.

[Emphasis added].

Subsection a. of N.J.S.A. 2C:44-3, allows imposition of an extended term when:

[t]he defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.

Thus N.J.S.A. 2C:44-3a permits the exercise of judicial discretion to impose an extended term after a finding that the defendant is eligible as a "persistent offender." Eligibility for the discretionary extended term is based entirely upon the defendant's criminal history, unlike a Graves Act mandatory extended term, which requires finding a separate fact: that a gun was involved. Compare Franklin, supra, 184 N.J. at 529-30.

Under pre-Apprendi law, the Supreme Court established a standard by which judges are to determine whether a discretionary enhanced term is appropriate. See State v. Dunbar, 108 N.J. 80, 95 (1987). In describing the process by which a judge determines whether to impose an extended term, the Court stated that "[o]nce the sentencing court has made the first determination that the defendant is eligible for extended sentencing, the court is not able to look to the Code for an explicit standard by which it should exercise its discretion to impose the extended sentence." Id. at 89. Rather, the Court concluded that a sentencing court must consider "the need for public protection," id. at 95, based upon consideration of "the relative weight, severity, and similarity of the prior offenses." Id. at 96-97.

The Dunbar standard for determining whether the imposition of a discretionary extended term is justified does not expose the defendant to a sentence longer than the maximum under the applicable statutory range. See Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2363, 147 L. Ed. 2d at 455. Thus an extended term that is imposed upon a finding that a defendant is a persistent offender does not violate a defendant's right to due process and trial by jury because it does not require any finding of fact other than facts inherent in the jury's verdict and the defendant's criminal history.

We reject defendant's claim that the judge abused his discretion here by imposing an extended term. Defendant concedes that the judge properly applied the Dunbar standards in imposing defendant's sentence. See Dunbar, supra, 108 N.J. at 95-96. The judge considered that had the gun not jammed, defendant could have killed one of the victims. In addition, he considered defendant's considerable criminal history and the progression of offenses that defendant had committed. Finally, the judge considered defendant's failure to respond to noncustodial efforts to rehabilitate him. In sum, the judge's decision to impose an extended term was the product of the application of the proper legal principles to ample credible evidence. See State v. Roth, 95 N.J. 334, 363 (1984). We are satisfied that the judge's finding that aggravating factors three, six, and nine apply is within our Supreme Court's interpretation of the recidivism exception allowed under Apprendi and Blakely. See Abdullah, supra, 184 N.J. at 506 n.2.

With respect to defendant's conviction for disorderly persons-resisting arrest, N.J.S.A. 2C:29-2, the State and defendant both note that a discrepancy exists between the sentences listed in the judgment of conviction and that which the judge pronounced in court. "It is firmly established that the sentencing transcript is 'the true source of the sentence.'" State v. Walker, 322 N.J. Super 535, 556 (App. Div. 1999) (quoting State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956)), certif. denied, 162 N.J. 487 (1999). It is plain that defendant's sentence on the disorderly persons offense, resisting arrest, is to run concurrent to his sentence for robbery.

 
The convictions and sentences appealed from are affirmed. The matter is remanded solely for correction of the judgment of conviction consistent with this opinion.

After dismissing the two attempted murder charges, the judge ordered the counts renumbered. However, as the numbering of the counts in the judgment of conviction reflects the counts as originally charged in the indictment, this opinion refers to the counts as they were originally numbered.

We use the spelling of this victim's name in the indictment. The briefs, however, spell his last name "Chauya."

The judgment of conviction erroneously indicates that the judge found aggravating factor eight, "[t]he defendant committed the offense against a police or other law enforcement officer," applicable. See N.J.S.A. 2C:44-1a(8). However, the judge's only reference to this aggravating factor during the sentencing hearing was that factor eight was applicable only to count sixteen; the judge later corrected himself (apparently because aggravating factor 8, a police officer as victim, was an element of resisting arrest) and determined that the factor did not apply at all.

Defendant was convicted on a separate indictment arising out of the same incident, second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. After a bifurcated trial, the same jury found defendant guilty. Defendant was sentenced for this offense at the same hearing, and a concurrent term of nine years imprisonment was imposed with no parole disqualifier. That conviction is not at issue in the present appeal.

Officer Schneider's partner, Officer Pinkney, died prior to the trial.

Neither party has presented arguments that reflect the Court's recent decisions in State v. Natale, 184 N.J. 458 (2005), State v. Abdullah, 184 N.J. 497 (2005), and State v. Franklin, 184 N.J. 516 (2005).

(continued)

(continued)

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A-6118-02T4

February 6, 2006