STATE OF NEW JERSEY v. FREDERICK L. PARKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6010-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDERICK L. PARKER,

Defendant-Appellant.

________________________________

December 13, 2010

 

S

June 24, 2011

ubmitted November 15, 2010 - Remanded

Resubmitted June 21, 2011 - Decided

 

Before Judges A.A. Rodr guez and Grall.

 

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment No. 07-12-2888.

 

Yvonne Smith Segars, Public Defender,

attorney for appellant (Daniel V.

Gautieri, Assistant Deputy Public

Defender, of counsel and on the brief).

 

Theodore F.L. Housel, Atlantic County

Prosecutor, attorney for respondent (Jack

R. Martin, Assistant Prosecutor, of counsel

and on the brief).

 

PER CURIAM

This appeal is before us following a remand for a resentencing after a hearing on imposition of consecutive sentences. State v. Parker, No. A-6010-08 (App. Div. Dec. 13, 2010) (slip op. at 11). We retained jurisdiction.

The judgment of conviction and sentence was entered on defendant's plea of guilty to five counts of an indictment alleging crimes all committed on October 27, 2007: third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; fourth-degree possession of prohibited hollow-point bullets, N.J.S.A. 2C:39-3f; fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1; and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7. There was no plea agreement; the plea was "open" and left sentencing to the court's discretion.

At the time of his guilty plea, defendant testified that "[an] officer tried to stop me and when he asked me to stop I didn't stop. I kept going." He admitted that he "took off when cops were trying to stop [him]" and cut into a parking lot because he did not want the officer to find the handgun he had in the waistband of his pants. That handgun had a defaced serial number and was loaded with a clip that held three hollow-point bullets. He further acknowledged that he had a prior conviction for possession of a controlled dangerous substance with intent to distribute, a conviction which prohibited him from possessing a handgun.

During his pre-sentencing interview, defendant said he carried the gun for self-protection because he carried a lot of cash. He also said he kept going when the police officer asked him to stop because he knew he was wanted for attempted murder. There is nothing in the record indicating when defendant obtained the handgun he was carrying or that it was used in any crime. Moreover, defendant did not display or use the handgun during this episode; when an officer caught up to him, defendant knelt on the ground and raised his arms.

With that background, we discuss the sentences imposed. The judge merged defendant's conviction for possession of a defaced firearm (count two) with his conviction for unlawful possession of a handgun (count one). The sentences imposed on the remaining counts were as follows: a four-year term for unlawful possession of a handgun (count one); a fifteen-month term for possession of hollow-point bullets (count three); a fifteen-month term for obstructing the administration of law (count four); and a nine-year term for possession of a weapon by a convicted person, subject to a mandatory five-year term of parole ineligibility (count five). Prior to remanding, we affirmed those sentences.

Our remand required the judge to resentence and address the relationship between the various custodial terms that is whether they were concurrent or consecutive. At the sentencing hearing and on the judge's statement of reasons for the sentences, the judge provided factual findings and a legal justification for imposing consecutive sentences for obstruction and the weapons offenses. He did not, however, provide any reasons for imposing consecutive sentences among the weapons offenses. Nevertheless, the judgment of conviction reflected consecutive sentences for two of the weapons offenses. Our remand was to permit the judge to articulate reasons for imposing consecutive sentences on the weapons offenses in light of the factors detailed in State v. Yarbough, 100 N.J.627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 84 L. Ed. 2d 308 (1986).

In addition, there were inconsistencies between the sentences pronounced by the court at the sentencing hearing and as reflected in the judgment of conviction. At the time of sentencing, the judge said the fifteen-month sentence for possession of hollow-point bullets on count three was concurrent with the sentence on count two, but the judge had merged count two and not imposed any sentence on that count. In contrast, the judgment of conviction states that the sentence on count three is concurrent with the sentence on count one.

Moreover, at the time of sentencing, the judge said the fifteen-month sentence for obstruction on count four was consecutive to counts two and three. In contrast, the judgment of conviction states that the sentence for obstruction is consecutive to the sentences on counts one and three. This difference is significant. The sentence on count one is four years and the sentence on count three is only fifteen months. Thus, under the sentence on count four pronounced in court, which referred only to a merged count and count three, service of the sentence on count four would commence after fifteen months and be completed before the expiration of the four-year term on count one. In contrast, under the sentence for count four set forth in the judgment, which referred to counts one and three, service of the sentence on count four would not commence until the four-year term on count one was served. That discrepancy affected the commencement date of the nine-year term for possession of a firearm by a convicted person on count five. The judge imposed that sentence to run consecutive to all other sentences. Thus, if the fifteen-month sentence for obstruction is concurrent to count one, the maximum aggregate sentence would be thirteen years four years on count one followed by nine years on count five. In contrast, if the fifteen-month sentence for obstruction is consecutive to count one, then the maximum aggregate sentence would be fourteen years and three months four years on count one, followed by fifteen months on count four, followed by nine years on count five.

Adding further confusion, in responding to a question from defense counsel about the aggregate sentence, the judge said, "it's nine consec[utive] to a [fifteen]. . . . [T]en years, three months, five years parole ineligibility." An aggregate sentence of that duration would be consistent with the reasons the judge gave for imposing consecutive sentences but inconsistent with the sentences imposed at the sentencing hearing.

In his initial brief, defendant conceded a remand was needed to clarify the sentences. He did not argue that the record was sufficiently clear to amend the judgment of conviction to conform with the sentence pronounced in court. State v. Pohlabel, 40 N.J. Super. 416, 423 (1956).

On remand, the judge clarified his intention with respect to consecutive and concurrent sentences, addressed the Yarbough factors and, according to the amended judgment of conviction, imposed the same sentences to run as follows:

* Unlawful possession of a firearm (count one) four years;

* Possession of hollow-point bullets (count three) fifteen months concurrent with the four-year term on count one;

 

* Obstruction (count four) fifteen months consecutive to the fifteen-month term for possession of hollow-point bullets;

 

* Possession of a weapon by a convicted person (count five) nine years consecutive to the sentences on count one, three and four.

In effect, because the maximum aggregate of the consecutive sentences for possession of hollow-point bullets and obstruction is thirty months, those sentences will be fully served before the four-year maximum sentence for unlawful possession of a handgun is served. Therefore, the maximum aggregate sentence is thirteen years and three months. But the judgment of conviction states that the aggregate sentence is fourteen years and three months.

Again, however, there is a discrepancy between the sentencing transcript on remand and the amended judgment of conviction. According to the transcript, the sentence on count four is consecutive to the four-year sentence on counts one and three, but the judgment of conviction provides a sentence consecutive to count three only. Therefore, the maximum aggregate would be fourteen years and three months, as stated in the judgment.

Defendant now argues:

I. BECAUSE THE JUDGE'S EXPLANATION FOR

IMPOSING CONSECUTIVE SENTENCES FOR THE TWO WEAPONS OFFENSES WAS CONTRADICTORY AND LEGALLY INCORRECT, THE MATTER MUST BE REMANDED FOR RESENTENCING.

 

II. THE TRIAL COURT FAILED TO PROVIDE AN

EXPLANATION FOR RUNNING THE SENTENCE FOR OBSTRUCTION CONSECUTIVE TO THE SENTENCE FOR POSSESSION OF A WEAPON WITHOUT A PERMIT.

 

III. THE COURT VIOLATED STATE V. ELLIS WHEN

IT IMPOSED THE HARSHER SENTENCE, CONTAINING A FIVE-YEAR PERIOD OF PAROLE INELIGIBILITY TERM, CONSECUTIVE TO TWO FLAT TERMS WITHOUT PROVIDING A VALID REASON FOR PROLONGING PARKER'S INCARCERATION.

 

IV. AT THE REMAND HEARING, THE JUDGE

ILLEGALLY INCREASED THE PREVIOUSLY IMPOSED AGGREGATE SENTENCE WHICH PARKER COMMENCED SERVING.

 

The argument presented in Point II is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The judge's decision to impose a sentence for obstruction that is consecutive to a weapons offense is adequately supported by the record and consistent with a proper application of the Yarbough factors.

We conclude, however, that the consecutive sentences imposed for unlawful possession of a handgun and possession of a firearm by a convicted person must be remanded again. This remand is required because the judge relied on facts not supported by the record.

When addressing consecutive sentences on remand, the judge found, among other things, that defendant "pled to a negotiated agreement with regard to the imposition of a consecutive sentence" and that defendant had used the handgun to shoot someone in a separate incident not charged in this indictment. There is no evidence in the record that provides direct or inferential support for those findings. There was no plea agreement, and the record does not reflect that defendant used this handgun in a crime prior to or during the episode at issue here. The gun was discovered tucked in defendant's waistband after he knelt down and raised his arms to submit to arrest. Where a sentencing determination is based on factual findings not supported by the record, this court cannot defer and where there is reason to question whether the judge would reach the same conclusion without the unsupported findings, a remand is necessary. See State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365-66 (1984).

Because we are remanding, we address the judge's legal interpretation of the Yarbough factors. In imposing consecutive sentences for possession of hollow-point bullets and possession of a weapon by a convicted person, the judge relied in part on the Yarbough factor that applies when "the crimes and their objectives were predominantly independent of each another." 100 N.J. at 644.1 In doing so, the judge focused on the distinct elements of the weapons offenses as defined by the Legislature and the Legislature's objectives rather than the facts of the case and defendant's objectives. The elements of crimes as defined by the Legislature are important to a merger analysis and the number of convictions that may be imposed. State v. Hill, 182 N.J. 532, 542-43 (2005); see State v. Wright, 155 N.J. Super. 549, 554-55 (App. Div. 1978) (discussing merger of these crimes as defined under prior law in a case involving concurrent sentences). The primary focus of the Yarbough factors, however, is on the facts relevant to the crimes.

The Yarbough factors are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

 

. . . .

 

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

 

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

 

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

 

(d) any of the crimes involved multiple victims;

 

(e) the convictions for which the sentences are to be imposed are numerous;

 

. . . .

 

[State v. Miller, 205 N.J. 109, 128 (2011) (quoting Yarbough, supra, 100 N.J. at 643-44)(emphasis added).]

 

With the exception of the first factor, which always applies, and the last factor, the number of convictions, all of these factors focus on the facts of the particular crimes for which the defendant is being sentenced, as the phrase emphasized above indicates. To illustrate the point, in a case involving one incident during which several victims were robbed, the Supreme Court noted that there was a question as to whether these robberies "were 'predominantly independent of each other.'" Id. at 129.

We recognize that this court has considered the Legislature's "objectives" when addressing this Yarbough factor. State v. Copling, 326 N.J. Super. 417, 441 (App. Div. 1999). But the crimes at issue in Copling were murder and unlawful possession of a firearm. Id. at 422. Moreover, the panel primarily looked to the facts of the case and the separate harms homicides and unlawful possession of a weapon. Id. at 441-42.

The State urges us to rely on this court's decision in Wright, as did the trial judge. We decline. First, the reference to consecutive sentences in Wright is dicta; that case did not involve consecutive sentencing. See also State v. Jackson, 404 N.J. Super. 483, 488 (App. Div. 2009) (affirming consecutive sentences for a crime committed in violation of N.J.S.A. 2C:39-7 and murder where all other sentences, including one for possession of a handgun without a permit, were concurrent). Second, the dicta in Wright is not persuasive because Wright did not involve offenses defined in the Code of Criminal Justice and was decided long before the Supreme Court addressed consecutive sentencing in Yarbough with the goal of establishing guidelines for consecutive sentences consistent with the Code's sentencing principles. Yarbough, supra, 100 N.J. at 636-37. On remand, the judge should consider whether the facts of this case reflect separate acts and independent objectives, as did the trial judge in the unpublished decision of this court on which the judge relied.

In Point III of defendant's brief, he argues correctly that the judge did not comply with State v. Ellis, 346 N.J. Super. 583, 597 (App. Div.), aff'd o.b., 174 N.J. 535 (2002), which requires a judge to make "specific findings" before requiring a defendant to serve a sentence with a period of parole ineligibility after sentences that are not so burdened.

See State v. Holland, 187 N.J. 76 (2006) (summarily remanding

to the trial court for resentencing consistent with Ellis).

We summarize our directions to facilitate a final resolution of this matter on remand.

1) The judge should address the discrepancy between the transcript of the resentencing hearing and the amended judgment with respect to the consecutive sentence on count four. If the judge simply misspoke at the resentencing hearing, then he should so state. If the judge did not misspeak, then the judge should reconsider and explain why the apparent increase in sentence that would result if the sentence on count four is consecutive to those on count one and three is appropriate and permissible.

2) The judge must reconsider the imposition of consecutive sentences without relying on the unsupported fact of a negotiated agreement and defendant's prior use of the handgun.

3) The judge should consider the Yarbough factors relevant to consecutive weapons offenses with reference to the facts of the case that are supported by the record.

4) The judge should reconsider the sentence in light of Ellis.

We retain jurisdiction and direct the judge to complete the resentencing hearing and submit an amended judgment of conviction to the clerk of this court no later than August 5, 2011. The clerk will issue a schedule for the submission of briefs, which shall be peremptory.

Remanded.

 

 

1 Without doubt, the judge properly relied on that factor in imposing consecutive sentences for obstruction and the various weapons offenses. Defendant's encounter with the law enforcement officer was purely accidental and not in any way related to his possession of a gun and ammunition.