STATE OF NEW JERSEY v. KEVON SHIPMAN a/k/a KEVIN S. SHIPMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4954-03T44954-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVON SHIPMAN a/k/a

KEVIN S. SHIPMAN,

Defendant-Appellant.

___________________________________________

 

Submitted September 10, 2007 - Decided October 17, 2007

Before Judges Lisa and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Ind. No.

02-01-0127.

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

Anne Milgram, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant entered an unconditional guilty plea to first degree robbery, contrary to N.J.S.A. 2C:15-1 and N.J.S.A.

2C:2-6, (Counts one through five), and third degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2b(2)(b), (Count fourteen). On this appeal, he raises the following issues:

POINT I

BECAUSE THE PROSECUTOR DID NOT SUBMIT A STATEMENT OF REASONS FOR SEEKING A TRANSFER OF JURISDICTION FROM THE FAMILY COURT TO ADULT COURT WITH THE WAIVER MOTION, THIS CASE MUST BE REMANDED TO THE FAMILY COURT FOR A PROPER WAIVER HEARING.

POINT II

THE JUVENILE WAIVER STATUTE VIOLATES DEFENDANT'S DUE PROCESS RIGHTS BECAUSE IT ALLOWS WAIVER BASED UPON A JUDGE'S FACT- FINDING ON LESS THAN PROOF BEYOND A REASONABLE DOUBT. (Not Raised Below)

POINT III

THE COURT WHICH SENTENCED DEFENDANT TO TEN YEARS WITH 85% PAROLE INELIGIBILITY FAILED TO CONSIDER, OR GIVE SUBSTANTIVE WEIGHT TO, THE 18-MONTH SENTENCE PREVIOUSLY IMPOSED ON HIS SIMILARLY SITUATED CO-DEFENDANT, R.P. THE RESULTING DISPARITY REQUIRES RESENTENCING, AND THE FACTS JUSTIFY SENTENCING DEFENDANT TO A SECOND DEGREE SENTENCE.

A. The Disparity Between Defendant's Sentence And R.P.'s Sentence Requires A Reduction In Defendant's Sentence.

B. Defendant's Sentence Should Be Reduced To A Second Degree Sentence.

We affirm.

On July 27, 2001, defendant (then age seventeen), his adult co-defendant Connell Kelly, Jr. (then age twenty) and a juvenile co-defendant R.P. (then age fifteen) committed an armed robbery. During the robbery, defendant pulled out a .40-caliber handgun, pointed it at the victims and demanded their money.

After the robbery, defendant and his accomplices fled in a stolen car driven by defendant. When the police stopped the car, defendant and his accomplices ran. While running, defendant discarded the handgun. The police apprehended defendant and Kelly and recovered the handgun. They subsequently apprehended R.P.

The State filed juvenile delinquency complaints against defendant and R.P., charging them with the commission of acts, which if committed by an adult, would have constituted first degree armed robbery, second degree possession of a weapon for unlawful purpose and third degree unlawful possession of a handgun. The State charged Kelly as an adult with the same offenses.

The State filed motions to transfer the juvenile proceedings against defendant and R.P. to adult court. Before R.P.'s waiver hearing, he entered into a plea agreement, wherein he agreed to plead guilty to an offense, which if committed by an adult, would have constituted second degree robbery. He also agreed to cooperate in the prosecution of defendant and Kelly in exchange for the State's agreement to withdraw its motion to transfer, dismiss all remaining juvenile delinquency complaints and recommend disposition of eighteen months in the State Home for Boys. The court sentenced R.P. to the State Home for Boys for eighteen months.

At defendant's waiver hearing, the State presented testimony from a detective to establish probable cause. It did not submit a written statement of reasons to support its decision to move for jurisdictional waiver. After hearing the testimony, the court found that the State had shown probable cause to believe that defendant committed the offenses charged. The court waived jurisdiction and transferred the matter to the Law Division.

Defendant eventually negotiated an unconditional plea agreement, wherein he agreed to plead guilty to five counts of first degree armed robbery and one count of third degree receiving stolen property. In exchange, the State agreed to dismiss the remaining counts and recommend a fifteen-year sentence with an eighty-five percent parole ineligibility on the armed robbery counts, and a concurrent five-year sentence on the receiving stolen property count. The State also agreed that these sentences would run concurrent with any sentence imposed for violation of probation.

Defendant pled guilty on April 29, 2002. On May 29, 2002, we issued our opinion in State ex rel. R.C., 351 N.J. Super. 248, 250-51 (App. Div. 2002), requiring the State to file a written statement of reasons in juvenile court simultaneously with a waiver motion. We also required the court to review the statement. Id. at 260.

Notwithstanding the State's plea agreement, pursuant to a court negotiated plea agreement, see R. 3:9-3(c), the court decided to limit defendant's sentence, and on September 13, 2002, it sentenced him to ten years on the armed robbery counts with an eighty-five percent parole ineligibility and five years of parole supervision, and to a concurrent five years on the receiving stolen property count. Defendant agreed to this reduced sentence. The court also ordered the sentences to run concurrent with any sentence imposed for violation of probation and imposed appropriate mandatory monetary assessments.

Regarding defendant's request for a remand for a proper waiver hearing, he does not dispute that the waiver motion satisfied the requirements of N.J.S.A. 2A:4A-26. He merely argues that he is entitled to a new waiver hearing because the prosecutor did not submit a written statement of reasons as required by State v. J.M., 182 N.J. 402 (2005), and R.C. Defendant's argument is without merit.

Defendant never sought any clarification of the prosecutor's reasons for seeking a waiver. He also never claimed that the prosecutor abused his discretion in seeking the waiver. More importantly, defendant never raised this issue before the trial court. Rather, he entered an unconditional guilty plea, and in the three-and-one-half months between our ruling in R.C. and defendant's sentencing, he never sought to withdraw his guilty plea and request a new waiver hearing with a written statement of reasons to be submitted by the prosecutor and reviewed by the court. Instead, defendant submitted to his sentencing under his unconditional guilty plea.

"Generally a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). There are only three exceptions to this general waiver rule: (1) grounds preserved under a conditional or retraxit plea under Rule 3:9-3(f); (2) review of denials of admission to pretrial intervention programs under Rule 3:28(g); and (3) review of denials of motions to suppress physical evidence due to an unlawful search or seizure under Rule 3:5-7(d). Ibid. None of these exceptions apply here.

Additionally, unlike defendant here, the juvenile in R.C. maintained before the court, and before the waiver motion was heard, that a written statement of reasons was required; the judge received the statement but refused to consider it; the juvenile pursued the issue prior to adjudication in adult court by filing a motion for leave to appeal; and the juvenile did not enter an unconditional guilty plea in adult court. Unlike the State here, the State in J.M. did not raise the argument before the Appellate Division that the juvenile's unconditional guilty plea barred appellate review. In addressing this issue, the Supreme Court stated:

We agree that the failure to enter a conditional plea under Rule 3:9-3(f) generally bars appellate review of non-Fourth Amendment constitutional issues. A defendant who wishes to preserve such an issue for appeal should enter a conditional plea pursuant to Rule 3:9-3(f). Even so, our Appellate Division has recognized that in limited situations where it would result in an injustice to strictly adhere to the requirements of the rule, the rule will not be enforced.

[J.M., supra, at 410, (citing Robinson, supra, 224 N.J. Super. at 498; State v. Gonzalez, 254 N.J. Super. 300, 304 (App. Div. 1992)).]

The Supreme Court refused to decide whether the case came within the limited exception because the State failed to raise the argument below. Ibid.

We conclude, therefore, that defendant's unconditional guilty plea bars our review of the trial court's decision to transfer the juvenile matter to adult court. It also bars our review of defendant's claim that the juvenile waiver statute violates his due process rights.

Regarding defendant's sentence, we find no merit in his argument that his sentence should be reduced to a second degree sentence due to the disparity between his sentence and R.P.'s sentence. Defendant pled guilty to five counts of first degree robbery and one count of third degree receiving stolen property. R.P. pled guilty to an offense, which if committed by an adult, would have constituted second degree robbery. Defendant pled guilty as an adult and, therefore, his case fell under the Code of Criminal Justice and he received a sentence under that Code. R.P. pled guilty as a juvenile, he was adjudicated a delinquent as a juvenile, and he received a sentence under the Code of Juvenile Justice. Moreover, defendant, not R.P., was the one who held the gun to the victims and drove the stolen getaway car. He also had five prior juvenile complaints against him, one of which was for unlawful possession of a handgun that resulted in an adjudication of delinquency. R.P. only had one juvenile complaint against him for joyriding that resulted in a suspended disposition.

We also find no merit in defendant's argument, raised for the first time here, that his sentence should be reduced to a second degree sentence due to the trial court's failure to make reasonable findings of aggravating and mitigating factors. N.J.S.A. 2C:44-1f(2) permits the trial court to sentence a defendant to a term appropriate for a crime one degree lower if it is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands." However, "[t]he decision to downgrade a defendant's sentence 'in the interest of justice' should be limited to those circumstances in which defendant can provide 'compelling' reasons for the downgrade." State v. Megargel, 143 N.J. 484, 501-02 (1996) (quoting State v. Jones, 197 N.J. Super. 604, 607 (App. Div. 1984)). "The reasons justifying a downgrade must be 'compelling' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Id. at 505.

Here, the trial court found two aggravating factors: defendant's history of prior delinquency and violation of probation, N.J.S.A. 2C:44-1a(3), and the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The evidence did not support any mitigating factors and defendant never raised before the trial court the alleged three mitigating factors he now raises here. More importantly, defendant agreed to a reduced sentence.

Finally, defendant's commutation and work credits cannot be applied to reduce his eighty-five percent parole ineligibility period imposed under the No Early Release Act, N.J.S.A. 2C:43-7.2. State v. Webster, ___ N.J. ___ (2007).

Affirmed.

(continued)

(continued)

10

A-4954-03T4

RECORD IMPOUNDED

October 17, 2007