STATE OF NEW JERSEY v. BARRY G. CONN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3765-03T43765-03T4

A-6357-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRY G. CONN,

Defendant-Appellant.

_____________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRY G. CONN,

Defendant-Appellant.

_____________________________

 

Submitted November 1, 2006 - Decided

Before Judges Collester and Sabatino.

On appeal from Superior Court of New Jersey,

Law Division, Salem County, 02-11-0518-I and

Atlantic County, 02-11-2332-I and 02-10-2192.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jodi L. Ferguson, Assistant

Deputy Public Defender, of counsel and on the

brief).

John T. Lenahan, Salem County Prosecutor,

attorney for respondent in A-3765-03T4 (Gregory

G. Waterston, Assistant Prosecutor, of counsel

and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent in A-6357-03T4 (Jack

J. Lipari, Assistant Prosecutor, of counsel

and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

In these back-to-back appeals defendant argues that his sentences were excessive and violative of his due process rights under State v. Natale, 184 N.J. 458 (2005). In Atlantic County he entered a guilty plea on October 30, 2003, to count one of indictment number 02-11-2332 charging robbery in the first-degree, contrary to N.J.S.A. 2C:15-1 and to count one of indictment number 02-10-2192 charging the same offense. The plea agreement stipulated that the State would recommend a sentence of seventeen years with an eighty-five-percent parole disqualifier pursuant to the No Early Release Act (NERA), to be served concurrently with any sentence defendant received on Salem County indictment number 02-11-0518, as well as any sentence imposed on charges pending in the State of Michigan. A plea agreement was entered with respect to the Salem County indictment with defendant entering a guilty plea to count one, robbery in the first degree, and stipulating the State would recommend a sentence of sixteen years with the NERA parole disqualifier to be served concurrently with the Atlantic County sentence.

All of the offenses for which defendant was sentenced involved robberies of commercial establishments. In Atlantic County on September 2, 2002, defendant entered a Radio Shack in Hamilton Township and demanded money after pointing what he said was a "real looking" plastic gun at a female employee. About two weeks later defendant entered a video store in Hammonton, Atlantic County, and committed another robbery using what appeared to a "real gun." The Salem County convictions involved a robbery on September 16, 2002, at a Holiday Inn in Carneys Point Township, again with what defendant said was a plastic imitation firearm.

On November 21, 2003, in Atlantic County, defendant was sentenced in accordance with the negotiated agreement to a prison term of seventeen years with an eighty-five-percent parole disqualifier and credit of 431 days jail time. On January 12, 2004, in Salem County, he received a prison term of sixteen years with an eighty-five-percent parole disqualifier under NERA concurrent with the Atlantic County sentences and any Michigan sentences.

Defendant appeals the sentences on the following grounds:

POINT I - DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AS THE SENTENCING COURT FAILED TO CORRECTLY APPLY AND WEIGH ALL RELEVANT FACTORS.

POINT II - BECAUSE DEFENDANT'S SENTENCE WAS ABOVE THE PRESUMPTIVE SENTENCE, THE MATTER MUST BE REMANDED TO PERMIT RE-SENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005).

POINT III - BECAUSE DEFENDANT POSSESSED A PLASTIC GUN DURING THE COMMISSION OF THE ROBBERIES, HE WAS NOT SUBJECT TO THE PROVISIONS OF THE GRAVES ACT.

POINT IV - THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO AWARD 431 DAYS OF JAIL CREDIT TO THE DEFENDANT.

Additionally defendant has submitted a pro se supplemental brief making the following arguments:

POINT I - DEFENDANT WAS SUBJECTED TO AN ILLEGAL SENTENCE AS THE STATUTORY MAXIMUM INCREASED BY TWO AND A HALF YEARS IN VIOLATION OF THE UNITED STATES CONSTITUTION'S SIXTH AMENDMENT, NEW JERSEY'S N.J.S.A. 2C SENTENCING CODE MANDATES MORE THAN ONE SENTENCE, ONE WHICH SUBJECTED DEFENDANT TO GREATER CONSEQUENCES, AND N.J.S.A. 2C:44-7.2 MANDATES JUDGES TO IMPOSE A TERM THAT EXCEEDS THE STATUTORY MAXIMUM.

POINT II - THE NEGOTIATED PLEA AGREEMENT BETWEEN DEFENDANT AND PROSECUTORS WAS NOT HONORED AS THE SENTENCE AGREED TO WAS ONLY PARTIALLY IMPOSED, DEPRIVING APPELLANT OF LIBERTY IN VIOLATION OF DUE PROCESS OF LAW.

POINT III - DEFENDANT'S PLEA WAS CONTINGENT UPON THE LANGUAGE OF THE NO EARLY RELEASE ACT THAT FACIALLY APPEARS TO MANDATE INCARCERATION NO GREATER THAN 85%, HOWEVER, NERA MANDATES A PENAL CONSEQUENCE FIVE YEARS BEYOND 85% OF THE SENTENCE IMPOSED, THEREBY MAKING THE AGREEMENT ILLUSIONARY.

POINT IV - THE SENTENCING COURTS FAILED TO CONSIDER MITIGATING FACTORS THAT, IF CONSIDERED, MAY HAVE SUBSTANTIALLY REDUCED DEFENDANT'S TERM.

POINT V - NEW RULE OF NEW JERSEY LAW ENTITLES DEFENDANT TO RESENTENCING AS DEFENDANT'S SENTENCE CURRENTLY EXCEEDS THE STATUTORY MAXIMUM

There is no substance to defendant's contention that his sentences were manifestly excessive or that the sentencing judges failed to consider mitigating factors. Where a defendant receives the exact sentence he bargained for, a presumption of reasonableness attaches to the sentence, and we will not disturb it absent a clear abuse of discretion. State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996). Our review of the appellant record leads us to conclude that the correct sentencing guidelines and presumptions were followed. There was substantial evidence in the record to support the findings of fact upon which the application of the guidelines was based, and the resulting sentences were reasonably imposed. State v. Roth, 95 N.J. 334, 365-67 (1984). In view of the sentencing judges' findings and defendant's extensive criminal record, we find no basis for the argument that he received excessive sentences.

We concur with defendant's argument that we must remand for re-sentencing in both cases on appeal. The former presumptive sentence on first-degree robbery, N.J.S.A. 2C:44-1(f), was exceeded by defendant's sixteen and seventeen year sentences. In State v. Natale, 184 N.J. 458 (2005), our Supreme Court held that a sentence above the presumptive statutory term based on judicial findings of aggravating factors other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guaranty. Id. at 466. See also Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), which hold a judge may not sentence a defendant beyond the "statutory maximum" based on findings of aggravating factors other than past criminal records.

Recently, in State v. Thomas, 188 N.J. 137 (2006) the Court applied Natale to a sentence above the presumptive term based upon aggravating factors 3 and 9, N.J.S.A. 2C:44-1(a). The Court noted that a sentencing court's findings assessing the seriousness of the criminal record (aggravating factor 6), the assessment as to the chances of recidivism (aggravating factor 3), and the need to deter the defendant and others from criminal activity (aggravating factor 9), involve judicial factfinding beyond a defendant's criminal history and impermissibly invades the province of the jury under the Sixth Amendment. Id. at 153. See also State v. Pierce, 188 N.J. 155, 166 (2006). Given the Court's ruling in Natale, no reference is to be made to a presumptive term in the re-sentencing.

The remaining arguments made by defendant in both appeals as set forth in his briefs and supplemental briefs, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Remanded for re-sentencing on A-6357-03T4 and A-3765-03T4 in accordance with Natale, supra, 184 N.J. 458 and State v. Abdullah, 184 N.J. 497 (2005). The remand proceedings shall be completed on or before forty-five days from the filing of this order. An extension of the time limit may be made upon informal application to the clerk of this court. Upon completion of the remand proceedings, the sentencing court shall enter a new judgment and submit a copy to the clerk of this court. The Public Defender shall order the transcript of the remand proceedings, which shall be produced expeditiously, and file an amended notice of appeal from the new judgment with the clerk of this court if defendant still seeks review of the sentence.

Remanded. We do not retain jurisdiction.

 

Defendant's argument that he was incorrectly sentenced under Graves Act, N.J.S.A. 2C:43-6(c), is academic since he received the mandated eighty-five percent parole bar under NERA. In any event, there was a sufficient basis for the sentencing judge to determine the applicability of the Graves Act in light of the fact that the defendant admitted to police the use of a BB gun or pellet gun in connection with the robberies. Such a weapon falls within the definition of a firearm under N.J.S.A. 2C:39-1(f). See State v. Austin, 335 N.J. Super. 486, 490 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001). It was also proper for the sentencing judge to consider the police report in which defendant admitted use of such a weapon. See State v. Stewart, 96 N.J. 596 (1984).

(continued)

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A-3765-03T4

May 16, 2007