STATE OF NEW JERSEY v. DOROTHY F. HAINES, a/k/a FAITH ANN HAINES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2761-06T42761-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOROTHY F. HAINES, a/k/a FAITH

ANN HAINES,

Defendant-Appellant.

__________________________________

 

Argued November 12, 2008 - Decided

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Cape May County,

Indictment No. 03-07-438.

Mark P. Stalford, Designated Counsel,

argued the cause for appellant (Yvonne

Smith Segars, Public Defender, attorney).

J. Vincent Molitor, Assistant Prosecutor,

argued the cause for respondent (Robert L.

Taylor, Cape May County Prosecutor, attorney).

PER CURIAM

This is an appeal from a sentence that was amended by the trial court on remand from this court. State v. Haines,

No. A-6417-03 (App. Div. Feb. 3, 2006). The case is before us for consideration after oral argument in accordance with Rule 2:9-11. For the reasons stated in this opinion, we affirm.

Defendant Dorothy F. Haines waived her right to indictment and pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a, and hindering her own apprehension and prosecution, N.J.S.A. 2C:29-3b. As the prosecutor and defense counsel explained and the plea form indicates, the State agreed to accept a plea to aggravated manslaughter and defendant agreed to waive "any intoxication, mental health and self-defense issues."

At the time of her plea, defendant admitted that she strangled the victim, who was her partner and roommate. She also acknowledged that she subsequently dismembered the victim's body and disposed of its parts in various locations.

Defendant has a criminal history. She was adjudicated delinquent on the basis of conduct that would have constituted simple assault if she had been an adult, and she has prior convictions in New Jersey and Pennsylvania for prostitution, assault, reckless endangerment and retail theft. Defendant was on probation when she committed the crimes at issue here.

There is no dispute that defendant has a history of psychological problems and neurological impairments resulting from brain injuries. In the opinion of a psychologist who evaluated defendant, her alcoholism, bi-polar disorder and neurological conditions combined to impair her ability to control her conduct.

In imposing sentence following her guilty plea, the trial court found no mitigating factors and four aggravating factors, N.J.S.A. 2C:44-1a(1), (3), (6), (9) (hereinafter designated as aggravating factors numbers one, three, six and nine). Consistent with defendant's plea agreement, the court imposed an aggregate sentence of thirty-two years. That sentence included a term of imprisonment of twenty-seven years for aggravated manslaughter, which is subject to a period of parole ineligibility and supervision required by N.J.S.A. 2C:43-7.2, and a consecutive five-year term of imprisonment for hindering apprehension.

On defendant's first appeal we remanded. Because the sentences were in excess of the former presumptive terms for the respective crimes and imposed prior to the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005), a remand for resentencing in accordance with Natale was required. Id. at 495-96; see N.J.S.A. 2C:44-1f(1)(a), (d). Although we did not address the merits of defendant's objections to the trial court's findings on aggravating and mitigating factors, we directed the court to reconsider "its decision to reject defendant's psychological problems as a mitigating sentencing factor in light of State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998); State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002); and State v. Dalziel, 182 N.J. 494, 503-05 (2005)." Haines, supra, slip op. at 3-4.

Consistent with our mandate and Natale, the trial court revaluated the significance of "defendant's psychological problems," otherwise made no "new findings concerning the quantity or quality of aggravating and mitigating factors previously found," and imposed sentences without reference to the former presumptive terms. See Natale, supra, 184 N.J. at 496.

Again relying on aggravating factors one, three, six and nine, the trial court explained that it would, as it had previously, assign those factors "substantial weight." The court recognized defendant's psychological problems as sufficient to establish a mitigating factor based on "substantial grounds tending to excuse" her conduct, N.J.S.A. 2C:44-1b(4). But, the court determined it was appropriate to assign only "slight" weight to that factor in imposing sentence for aggravated manslaughter because the mitigating impact of defendant's psychological problems was largely addressed by the parties' agreement to a conviction based on aggravated manslaughter rather than murder. The court assigned greater weight to this mitigating factor in imposing sentence for hindering apprehension and prosecution. On that basis, the court again imposed a twenty-seven-year term for aggravated manslaughter but reduced the consecutive term for hindering prosecution from five to four years.

We now consider defendant's objections to the court's identification and balancing of aggravating and mitigating factors. "The critical focus of the appellate power to review and correct sentences is on whether the basic sentencing determination of the lower court was clearly mistaken." State v. Jarbath, 114 N.J. 394, 401 (1989) (internal quotations omitted). Intervention is appropriate only

(1) if the sentencing guidelines were not followed or applied; (2) if the aggravating and mitigating factors found by the sentencing court were not based on sufficient evidence in the record; and (3) if, even though the sentence falls within the guidelines on the basis of factors supported by adequate evidence, the application of the guidelines to the facts of the particular case renders the sentence clearly unreasonable so as to "shock the judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Generally, this court affirms a sentence if the trial court has identified and balanced the aggravating and mitigating factors that are supported by the record and exercised its discretion in accordance with the statutory guidelines. Natale, supra, 184 N.J. at 489. This court does not substitute its judgment for that of the trial court. Ibid.

Defendant contends the record does not support a finding of aggravating factor number one, which focuses on "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1a(1). The record, however, includes facts that our courts have deemed sufficient.

Adequate factual support for aggravating factor number one is found in defendant's account of the incident. She admitted to strangling the victim to death, dismembering the corpse and scattering its pieces. The Supreme Court has recognized the relevance of post-mortem mutilation to the depravity of a murder and of strangulation to the cruelty of the homicidal conduct. State v. Bey, 129 N.J. 557, 580 (1992) (Bey II) (noting "[s]trangulation is an especially brutal means of killing because it requires the murderer to witness the victim's gradual death throes"); State v. Bey, 112 N.J 123, 173-74 (1988) (discussing post-mortem mutilation as evidence that the defendant committed a murder involving depravity of mind); State v. Ramseur, 106 N.J. 123, 209 n.37 (1988) (same); cf. State v. Davis, 116 N.J. 341, 395-400 (1989) (Handler, J. dissenting) (criticizing the majority's reliance on post-mortem mutilation). In addition, this court has upheld a finding of aggravating factor number one on facts remarkably similar to those in this case. State v. Vasquez, 265 N.J. Super. 528, 561-63 (App. Div.), certif. denied, 134 N.J. 480 (1993). The defendant in Vasquez strangled and stabbed a woman who had decided to leave him, dismembered the corpse and disposed of its parts in various locations. Id. at 563. The trial court found aggravating factor number one and a need to deter, and the first-time offender's life sentence for murder was affirmed on appeal. Id. at 562-63.

Defendant also argues that the court abused its discretion by finding a risk of recidivism based on defendant's mental condition and assigning too little weight to a mitigating factor based on her psychological and neurological problems. We are convinced that these determinations were neither clearly mistaken nor arbitrary. "Strangulation is commonly understood as a form of violence designed and likely to kill a

victim . . . ." Bey II, supra, 129 N.J. at 579-80. For that reason, it is not unreasonable to conclude that the plea agreement for aggravated manslaughter includes a mitigation attributable to defendant's inability to control her intentional homicidal conduct. Further, as the trial court noted, the mental condition that impaired defendant's inability to control her conduct and her criminal history strongly indicate a significant risk of recidivism. N.J.S.A. 2C:44-1a(3).

Finally, defendant contends that the trial court's decision to consider dismemberment as a factor aggravating both homicide and hindering apprehension and prosecution amounted to an impermissible double-counting of the same harm. Double-counting, the use of conduct or a circumstance that is an element of the crime to aggravate the sentence for that crime, is prohibited. See State v. Carey, 168 N.J. 413, 420, 425 (2001) (disapproving consideration of the victims' deaths in aggravation of vehicular homicide but approving consideration of injuries sustained by other victims of the accident); State v. Pillot, 115 N.J. 558, 564, 577 (1989) (disapproving consideration of use of weapon in aggravation of a robbery elevated to a crime of the first degree because of the weapon involved). Quite obviously, dismemberment of a corpse is not an element of either of the crimes for which defendant was sentenced. While we might not have done the same, the trial court did not exceed its discretion in considering this non-essential conduct as a fact aggravating the nature of both crimes and warranting consecutive sentences. See State v. Boyer, 221 N.J. Super. 387, 405-06 (App. Div. 1987) (noting, in a case involving consecutive sentences for murder and possession of a weapon with an unlawful purpose, that it was not "inappropriate" for the court to consider the victim's death as a factor aggravating the weapons offense), certif. denied, 110 N.J. 299 (1988).

Affirmed.

 

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A-2761-06T4

December 1, 2008