STATE OF NEW JERSEY v. EBEN BLACKSTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2230-05T42230-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

EBEN BLACKSTON,

Defendant-Appellant.

__________________________________

 

Submitted: August 29, 2007 - Decided September 5, 2007

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-02-0706-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eben Blackston pled guilty to two counts of aggravated manslaughter. At sentencing, defendant was sentenced to a twenty-five-year term of imprisonment subject to an 85% NERA parole ineligibility term. The appropriate fines, fees and assessments were imposed. Defendant appealed, and by order dated November 15 and filed on November 22, 2004, the matter was

remanded for reconsideration of the aggravating factors and the sentence in light of the inapplicability of aggravating factor number one because it includes an element of the offense. See State v. Kromphold, 162 N.J. 345, 353 (2000). The court shall also consider whether Blakely v. Washington, 542 U.S. [296], 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) is applicable to any term in excess of the presumptive term.

Before resentencing, defendant moved to recuse the sentencing judge. That motion was denied on April 28, 2005. Defendant renewed his motion to recuse at the resentencing hearing. Following denial of that motion, the sentencing judge reimposed the original sentence.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT DENIED DEFENDANT HIS DUE PROCESS RIGHT TO A FAIR RESENTENCING PROCEEDING BY REFUSING TO RECUSE ITSELF.

POINT II

THE 25-YEAR SENTENCE WITH AN 85% PAROLE DISQUALIFIER RE-IMPOSED BY THE TRIAL COURT IS MANIFESTLY EXCESSIVE, AND WAS BASED UPON IMPROPER FINDINGS ON THE AGGRAVATING FACTORS AND AN UNWARRANTED REFUSAL TO EVEN CONSIDER RELEVANT MITIGATING FACTORS.

Since the completion of the first remand proceeding, it is now clear that the rule announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) applies to this matter. State v. Natale, 184 N.J. 458 (2005). A guilty plea does not constitute implicit consent to imposition of a term of imprisonment beyond the presumptive term. Id. at 495. Moreover, the recidivism exception pertains solely to the fact that a defendant has a prior criminal record. The exception does not include the risk that the defendant will commit another offense (aggravating factor 3) or the need for deterrence (aggravating factor 9). State v. Thomas, 188 N.J. 137, 153 (2006). Thus, we remand for reconsideration of the sentence imposed. As directed by the Court in Natale, supra, "[a]t 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." 184 N.J. at 495-96.

The new sentencing hearing will be before Judge Ravin. Defendant's contention that he should have recused himself is without sufficient merit to require discussion in a written opinion, as is his argument that the sentence was based on improper findings of aggravating factors and the absence of mitigating factors. R. 2:11-3(e)(2).

 
Remanded for a new sentencing hearing; we do not retain jurisdiction.

No Early Release Act, N.J.S.A. 2C:43-7.2.

The remaining nineteen counts of the indictment were dismissed.

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A-2230-05T4

September 5, 2007