STATE OF NEW JERSEY v. SHAUN GILLIAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5045-04T45045-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAUN GILLIAM,

Defendant-Appellant.

_________________________________________________

 

Submitted January 17, 2007 - Decided May 21, 2007

Before Judges Kestin and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

03-12-2142.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Robert Seelenfreund,

Assistant Deputy Public Defender, of counsel

and on the brief).

Edward J. DeFazio, Hudson County Prosecutor,

attorney for respondent (Lisa M. DeMartini,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Shaun Gilliam, appeals from his conviction for first-degree robbery, N.J.S.A. 2C:15-1, fourth-degree possession of an imitation firearm under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5(d), and fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4(e). He appeals, as well, from his custodial sentence of fifteen years on the robbery conviction, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and, following merger of the conviction for possession of an imitation firearm for an unlawful purpose, from his concurrent four-year sentence for possession of an imitation firearm under circumstances not manifestly appropriate for its lawful use.

On appeal, defendant raises the following arguments:

POINT I

DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS ATTORNEY'S FAILURE TO REQUEST A WADE HEARING.

POINT II

DEFENDANT'S SENTENCE IS EXCESSIVE AND ILLEGAL.

A. Defendant's Sentence Is Manifestly Excessive As The Sentencing Court Failed to Correctly Apply And Weigh All Relevant Factors. Moreover, There Was An Unjustified Disparity Between Co-Defendants' Sentences.

B. The Sentence Imposed On The Unlawful Possession Of A Weapon Count Is Illegal.

The State properly concedes error in the sentence on the weapons charge, which constituted a fourth-degree crime subject to a maximum eighteen-month sentence. N.J.S.A. 2C:43-6a(4).

At trial, co-defendant, Alberto Jiminez, testified for the State, as did the victim, David Adams, and various police officers. The State's proofs established that, on October 15, 2003, four individuals, including two adults, defendant and Jiminez, and two juveniles, after resolving to commit a robbery, attempted to rob Adams as he walked to his residence from the Journal Square PATH station in Jersey City. However, as the four individuals encircled Adams and grabbed his jacket, Adams dialed 911 on his cell phone, and feeling what he later identified as a gun held to his back, he pushed the "send" button, calling the police. The four perpetrators then fled, but were later apprehended by the police, after their descriptions and directions of flight had been given by Adams. The four were identified by Adams in one-person show-ups conducted by the police. In a pat-down search following arrest, defendant was found to be carrying what was later found to be an inoperable, imitation firearm. Evidence established that defendant had supplied the gun for use in the robbery.

On appeal from his conviction, defendant claims ineffective assistance of counsel under standards established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), as the result of counsel's failure to challenge defendant's show-up identification by seeking a Wade hearing. As relief, defendant now seeks that hearing and a determination by the court whether the suggestive show-up identification procedures led to defendant's misidentification as a participant in the attempted robbery.

"Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Having reviewed the record and found it silent as to why counsel adopted the strategy employed, but also discerning plausible reasons for having done so, we follow that policy in this case. Defendant's conviction is therefore affirmed without prejudice to his right to claim the ineffectiveness of counsel through an application for post-conviction relief.

Defendant also challenges his fifteen-year sentence, subject to NERA, for first-degree robbery, arguing that the trial judge misapplied aggravating factors 3 (risk of reoffense) and 6 (extent of prior record), N.J.S.A. 2C:44-1a(3) and (6), and erred in not finding mitigating factor 7 (that defendant had led a law-abiding life for a substantial period of time prior to the present crime). N.J.S.A. 2C:44-1b(7). We disagree.

The record reflects that, at sentencing, the trial judge appropriately considered the pre-sentence investigation report, the arguments of counsel, and defendant's statement on his own behalf before concluding that aggravating factors 3, 6 and 9 applied to defendant and that no mitigating factors were applicable. In weighing the need for deterrence particularly heavily in imposing sentence, the judge considered the fact that defendant was a high school graduate and that he was taking college courses in journalism. In the judge's view, in light of defendant's background, there was "no reason, no excuse" for his participation in the robbery. The judge stated: "I give all the weight I can, of course, to the deterrent factor because [defendant] must be deterred from committing these crimes, and particularly crimes of violence." As a result, the judge rejected defense counsel's request that a sentence be imposed in the second-degree range or at the bottom of the first-degree range, concluding that "at least" the then-presumptive term was warranted. A fifteen-year sentence with an eighty-five percent parole disqualifier was imposed.

We find the judge's utilization of aggravating factors 3, 6 and 9 to have been appropriate in this case. Although, as defendant contends, he had no prior indictable convictions, defendant was only nineteen years of age at the time of the robbery for which he was convicted, and thus barely an adult capable of accruing a record of indictable offenses. Moreover, the robbery involved the use of a gun, and defendant had been adjudicated delinquent three years earlier on a weapons possession charge. The trial judge properly considered this adjudication, the fact that it also involved the possession of a weapon, and the markedly increased severity of defendant's present weapons-related crime in finding applicable the three challenged aggravating factors. State v. Pindale, 249 N.J. Super. 266, 288 (App. Div. 1991)(holding that consideration of a juvenile record was appropriate in assessing aggravating factors); State v. Carey, 168 N.J. 413, 426 (2001) (concluding that the need for deterrence increased proportionally with the degree of the offense).

That defendant denied responsibility for the crime and consistently sought to diminish his role in it, as reflected in the pre-sentence investigation report and sentencing transcript, also provided a proper foundation for the judge's invocation of aggravating factors 3 and, particularly, 9. Id. at 437; State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div 1991).

We likewise discern no error in the trial judge's decision that no mitigating factors were applicable to defendant. In this regard, defendant argues the applicability of factor 7. However, his juvenile record demonstrates the absence of the law-abiding life that the factor recognizes.

In sum, we are satisfied that defendant's sentence was not manifestly excessive or unduly punitive, and that it did not result from an abuse of discretion on the part of the trial judge. State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).

As a final matter, defendant claims that the sentence imposed upon him was disproportionate, given the three-year sentence, subject to NERA, imposed upon his co-defendant, Jiminez. However, Jiminez was sentenced pursuant to a negotiated plea whereby his crime was downgraded to one of the second degree, and his third-degree sentence was made contingent upon his cooperation with the State in the prosecution of defendant Gilliam, a condition that he fulfilled. Moreover, Jiminez's judgment of conviction, supplied by the State on appeal, suggests that, unlike defendant Gilliam, Jiminez did not have a criminal record. Facial reasons for the disparity in sentencing thus exist. A lack of additional evidence regarding the circumstances of Jiminez's plea and sentence precludes further evaluation of this claim, and it is rejected, defendant having failed to meet his burden of demonstrating that Jiminez was similarly situated for sentencing purposes. Cf. State v. Papasavvas, 170 N.J. 462, 480 (2001).

 
Defendant's conviction is affirmed. The matter is remanded for resentencing on the conviction for fourth-degree unlawful possession of a weapon.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

(continued)

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A-5045-04T4

May 21, 2007