STATE OF NEW JERSEY v. JAMES AFELIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1043-05T41043-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES AFELIS,

Defendant-Appellant.

_______________________________________

 

Submitted April 18, 2007 - Decided June 8, 2007

Before Judges Stern and A. A. Rodr guez.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, 04-12-0444-I.

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

Stuart Rabner, Attorney General, attorney for respondent (Lora B. Glick, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, James Afelis, entered into an agreement with the State, pleading guilty to thirteen offenses as follows: fourth degree issuing a bad check, N.J.S.A. 2C:21-5; fourth degree theft, N.J.S.A. 2C:20-3; fourth degree possession of marijuana, N.J.S.A. 2C:35-10a(3); two counts of third degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5b(11); third degree theft, N.J.S.A. 2C:20-3; third degree conspiracy to commit theft, N.J.S.A. 2C:5-2 and 2C:20-3; two counts of third degree burglary, N.J.S.A. 2C:18-2; third degree receiving stolen property, N.J.S.A. 2C:20-7a; three counts of third degree burglary, N.J.S.A. 2C:18-2; and fourth degree criminal mischief, N.J.S.A. 2C:17-3a(1). In exchange, the State agreed to dismiss multiple charges and recommend a three-year term on a burglary count consecutive to a three-year term on the other burglary count. All other sentences were to run concurrent. Thus, the aggregate term would have been six years. The State also agreed, as reflected in the plea form:

to ROR bail of defendant pending sentencing. If defendant fails to appear for sentencing or commits a new offense subsequent to date of plea, the court is free to impose any sentence permissible law.

Defendant failed to appear for sentencing. When defendant did appear, Judge William L. Forester indicated that he could not abide by the negotiated sentence recommendation. Instead, the judge imposed a four-year term on each of the two burglary convictions to run consecutively. The sentence on all other offenses ran concurrently. Thus, defendant was sentenced to an eight-year aggregate term.

Defendant contends on appeal:

THE COURT LACKED THE AUTHORITY TO INCREASE DEFENDANT'S SENTENCE BECAUSE HE FAILED TO APPEAR ON THE ORIGINAL SENTENCING DATE.

We reject this contention and affirm.

A plea agreement that allows the judge to impose a higher sentence than a defendant would have received had he appeared for sentencing is valid and enforceable. State v. Subin, 222 N.J. Super. 227, 237 (App. Div.), certif. denied, 111 N.J. 580 (1988); State v. Barboza, 115 N.J. 415, 420 (1989). If the agreement is voluntarily and knowingly made by defendant, it does not offend public policy. Subin, supra, 222 N.J. Super. at 238-39. However, the judge may not impose the higher sentence automatically, solely because defendant failed to appear. Id. at 239. The judge must always fashion a sentence in accordance with the provisions of the New Jersey Code of Criminal Justice. Ibid. The judge must weigh the aggravating and mitigating factors that are supported by the evidence pursuant to N.J.S.A. 2C:44-7, and then impose a term that is in accordance with the sentencing guidelines and based upon a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). We emphasize that Subin is still good law.

This case does not come within the prohibition set by State v. Rolex, 167 N.J. 447 (2001) against "no appearance/no waiver agreement," because it does not involve drug offenses that require compliance with the Brimage guidelines. The offenses to which defendant pleaded guilty do not involve mandatory minimum terms. In fact, only one offense of the thirteen to which defendant pleaded guilty involved narcotics. The Rolex case involved a third degree possession of marijuana with intent to distribute in a school zone, whereas this was not a school zone case.

Moreover, because of the nature of the offenses to which defendant pleaded guilty, this case does not come within the requirement of State v. Shaw, 131 N.J. 1 (1993) either. In Shaw, the Supreme Court held that inclusion of appearance requirement in a school zone plea agreement was not an arbitrary or abusive exercise of prosecutor's discretionary power. However, the trial court had to determine whether prosecutor's decision to withdraw plea agreement was abuse of discretion. Id. at 15-17. This is not a school zone case.

Here, we note that defendant agreed to the condition that if he failed to appear at sentencing, the judge could depart from the sentence recommendation and impose higher terms. Defendant was twenty-five years old at the time of the sentencing. He had a history of three indictments, four disorderly persons convictions, and a substantial number of juvenile delinquency adjudications. He was sentenced to a three-year term in State Prison in 2001. The judge found four of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; (9) the need for specific and general deterrence from law; and (11) the imposition of a fine, penalty or order for restitution without also imposing a term of imprisonment would be perceived by defendant or others merely as part of the cost of doing business. The judge also found two of the mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (6) defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service; and (12) the willingness of defendant to cooperate with law enforcement authorities. The judge found that the aggravating factors outweighed the mitigating factors.

As the State's brief points out, the judge properly considered defendant's failure to appear at sentencing as relevant to a finding of two of the aggravating factors, i.e., (3) the risk that defendant will commit another offense; and (9) the need for deterrence. State v. Subin, 222 N.J. Super. at 240; see also State v. Wilson, 206 N.J. Super. 182, 184 (1985) (holding that the reason for a defendant's failure to appear at sentencing may be considered by the judge if it is relevant to a sentencing factor).

Thus, we conclude from our careful review of the record that the judge complied with the statutory requirement. Moreover, the sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

The sentence is affirmed.

 

This appeal was originally argued on the April 5, 2006 Sentence Oral Argument Calendar. On April 10, 2006, we removed the case from that calendar and permitted defendant to brief the issue.

State v. Brimage, 153 N.J. 1 (1998).

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A-1043-05T4

June 8, 2007