STATE OF NEW JERSEY v. JIMMY VARGAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2473-07T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JIMMY VARGAS,

Defendant-Appellant.

_________________________________

April 14, 2011

Submitted March 30, 2011 - Decided

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-02-00659.

Yvonne Smith Segars, Public Defender, attorney for appellant (John Douard, Assistant Public Defender, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Jimmy Vargas appeals from the imposition of a revised aggregate sentence of thirty-six years imprisonment, which includes a contested second Graves Act extended term for second-degree possession of a weapon for an unlawful purpose. We affirm.

I.

Because defendant's conviction was previously affirmed by this court, State v. Vargas, No. A-1959-03T4 (App. Div. May 31, 2005) (Vargas I), we recite only those facts necessary for a determination of the sentencing issues in this appeal.

Following a jury trial in 2002, relating to events that occurred in 2000 in Camden, defendant was convicted of eleven offenses, including second-degree burglary, N.J.S.A. 2C:18-2 (count six) and second-degree possession of a weapon (a stolen gun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count fourteen). At sentencing, the trial court found that defendant was both a persistent offender and a second Graves Act offender, and qualified for extended terms on counts six and fourteen. As to the burglary offense in count six, the trial court imposed an eighteen-year term with a nine-year period of parole ineligibility concurrent to certain other counts. Regarding the firearm offense in count fourteen, the court imposed another eighteen-year custodial term, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run consecutive to count six. Defendant's initial aggregate sentence was thirty-six years with a twenty-four year, nine-month, and twenty-three-day period of parole ineligibility.

On appeal of those convictions and sentences, we held, "[w]ith the exception of a claim under State v. Meekins, 180 N.J. 321 (2004), that the State concedes, we affirm defendant's convictions and sentence. We remand for resentencing on count fourteen." Vargas I, supra, slip op. at 5. In July 2005, defendant was re-sentenced by a different judge on count fourteen as a persistent offender not as a second Graves Act offender to a discretionary extended term of eighteen years with a nine-year minimum term before parole. The aggregate custodial term became thirty-six years with eighteen years of parole ineligibility.

On appeal for a second time with this court, we remanded again, "at the request of both counsel . . . for resentencing of [count fourteen] in conformity with State v. Thomas, 188 N.J. [137] (2006) (mandatory extended term, Graves [Act] sentence)." State v. Vargas, No. A-1208-05T4 (App. Div. Feb. 6, 2007) (Vargas II).1 In that third sentencing, the court treated count fourteen as worthy of a Graves Act extended term, and like the first sentence imposed a mandatory extended term of eighteen years with a nine-year parole disqualifier pursuant to N.J.S.A. 2C:43-6(c). The final aggregate sentence matched the second sentence, but for different reasons. This appeal followed.

II.

On appeal, defense counsel raises the following point:

POINT I: THE DEFENDANT'S EXTENDED-TERM GRAVES ACT SENTENCES MUST BE VACATED, PURSUANT TO APPRENDI V. NEW JERSEY, SHEPARD V. UNITED STATES AND STATE V. FRANKLIN, BECAUSE THE JUDGE RELIED ON A FACT NEITHER FOUND BY A JURY BEYOND A REASONABLE DOUBT NOR ADMITTED BY DEFENDANT. MOREOVER, DEFENDANT IS NOT SUBJECT TO A PERSISTENT-OFFENDER EXTENDED-TERM SENTENCE ON DOUBLE-JEOPARDY GROUNDS U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, 1, 9, 10 (NOT RAISED BELOW).

Defendant's pro se supplemental brief raises the following point:

POINT I: THE DEFENDANT, JIMMY VARGAS, WAS ILLEGALLY SENTENCED WHEN THE JUDGE, NOT THE JURY, DECIDED THAT THE AGGRAVATING FACTORS FOUND BY THE COURT WERE ENOUGH TO ENHANCE DEFENDANT'S SENTENCE REGARDLESS OF RECENT U.S. SUPREME COURT DECISIONS IN JONES, APPRENDI, BLAKELY AND BOOKER; AND MORE RECENTLY BY OUR STATE SUPREME COURT IN NATALE, ABDULLAH AND FRANKLIN, IN DIRECT VIOLATION OF UNITED STATES SUPREME COURT DECISIONS, CASE LAW, STATE SUPREME COURT DECISIONS AND VIOLATIONS OF THE CONSTITUTION BOTH STATE AND FEDERAL.

Distilled to their essence, these points contest for the first time2 that the original sentence on count fourteen (as well as on counts six, eight, and eleven3) was illegal because the court failed to rely on constitutionally competent evidence of defendant's commission of prior Graves Act crimes. Citing violations of Jones v. United States, 526 U.S. 227, 249, 119 S. Ct. 1215, 1227, 143 L. Ed. 2d 311, 330 (1999); 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); United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005); Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005); State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005); and State v. Franklin, 184 N.J. 516 (2005), defendant argues that the sentencing court's fact-finding denied him "constitutional rights to due process under the Sixth and Fourteenth Amendments of the United States Constitution and the parallel provisions of the New Jersey Constitution."

Specifically, defendant contends that the Graves Act sentence enhancement that was imposed in 2002 and again in 2007, was improperly based upon the court's finding that defendant was previously convicted in 1988 of crimes in which he used a gun. Arguing that the limited record that was available to the two judges in 2002 and 2007 did not support an admission by defendant as to his 1988 conduct, and coupled with the jury's verdict in 2002 that did not make any findings regarding defendant's prior conduct, defendant urges that each of the two courts sentence-elevating fact-finding was constitutionally flawed. We disagree.

Defendant does not dispute that in two separate indictments, he pled guilty and was convicted in 1988, of three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). In the first indictment (#1988-08-88) relating to events that occurred on June 14, 1988, in Camden defendant was sentenced to a six-year term with three years of parole ineligibility on count one, with a concurrent six-year term with a three-year parole disqualifier on the second count.4 In the second indictment (#2088-08-88) relating to events that occurred two days later on June 16, 1988, also in Camden defendant was sentenced to a nine-year term, with a three-year period of parole ineligibility for the plea-bargained second-degree offense.

Although these convictions were based upon guilty pleas, transcripts of defendant's plea allocutions are not now available after more than twenty-two years, and were not available to the sentencing judges in 2002 or 2007. The plea form that defendant signed on December 12, 1988, indicated that the State's sentencing recommendation mirrored the final sentence imposed by the court. The plea form also acknowledged that "the court must impose a minimum time to be served without parole of [six] years." The 1988 pre-sentence report, which was available in 2002 and 2007, noted the applicability of a three-year mandatory minimum sentence pursuant to several statutes, including N.J.S.A. 2C:43-6. In its description of the overall circumstances relating to the first indictment, the 1988 pre-sentence report recited in part, "Jimmy Vargas and the person known as Poppo [Massa] shot [the victims]." Immediately following this description of events, in the place reserved for a recitation of defendant's statement, the pre-sentence report indicated: "[t]he defendant acknowledged his involvement in this offense."

During the 2002 sentencing, the court noted that the 1988 sentencing judge had written in her Statement of Reasons for Sentence that the offenses "involved shooting." In fact, that earlier sentencing judge wrote:

It is very hard to believe that someone of the age of [twenty] is already a persistent offender even though he does not qualify under the [s]tatute because of his age[,] not his record. These are three extremely serious aggravated assaults involving shooting.

Building upon this foundation, and clearly with reference to the 1988 pre-sentence report, the 2002 sentencing court held:

In the first case, a two-year-old child was struck by your bullet. In the second case, two men were shot by you and your co-defendant.

I am satisfied, by a preponderance of the evidence, that you are at least [eighteen] years of age, you have been previously convicted of three crimes, set forth in [N.J.S.A.] 2C:12-1(b); namely aggravated assault, wherein you possessed a firearm, as defined in [N.J.S.A.] 2C;39-1(f). And you are thus eligible to be sentenced as a second offender with a firearm, pursuant to [N.J.S.A.] 2C:44-3(d). As these grounds are found, the Graves Act will apply to this defendant, pursuant to the provisions of [N.J.S.A.] 2C:43-6(c).

Therefore, this [c]ourt is mandated to apply an extended term in these circumstances and, as required by law, the term of imprisonment shall include the imposition of a period of parole ineligibility as argued by the state.

Although the 2007 sentencing judge did not explicitly address the elements of the Graves Act sentencing enhancement, it is plain that she adopted the 2002 rationale of the original sentencing judge in treating defendant as a Graves Act second offender pursuant to N.J.S.A. 2C:43-6(c), which provides:

A person who has been convicted of an offense . . . and who used or possessed a firearm during its commission . . . and who has been previously convicted of an offense involving the use or possession of a firearm . . . shall be sentenced by the court to an extended term.

[N.J.S.A. 2C:43-6(c).]

Notwithstanding this history, defendant argues that there was nothing except hearsay to establish his second offender Graves Act status. His contention is the following:

Where, as here, a sentence-elevating prior Graves Act offense was the subject of a plea agreement, the predicate fact, the use of a firearm, must be established by a transcript of the plea colloquy, by written plea agreement in which the use of a firearm is admitted by the defendant or by comparable findings of fact adopted by the defendant.

From our review of the record, we are satisfied that the surrounding circumstances of the 1988 plea and sentencing, coupled with defendant's acquiescence in that process, and fortified by the circumstantial evidence relating to the nature of the 1988 aggravated assaults, leads to the inescapable conclusion that defendant adoptively admitted that his 1988 convictions involved the use of a firearm, thereby making him mandatorily eligible for an extended term pursuant to the Graves Act sentencing calculus.

We start not with Jones, Apprendi, or Blakely, but rather with Franklin, a Graves Act case that distilled the emerging strands of sentence enhancement jurisprudence that were being developed in the first decade of the twenty-first century. In Franklin, the Supreme Court held that where firearm involvement exposes a defendant to an extended term, possession or use of a firearm is essentially an element that must be submitted to the jury and proved beyond a reasonable doubt, or admitted by the defendant at a guilty plea. Franklin, supra, 184 N.J. at 534. Defendant recognizes that Franklin addressed the second-in-time offense, not the first one, but argues its logical applicability to the former. The State does not dispute this argument. We note that there is clearly no infirmity involved in the Graves Act applicability to the 2002 convictions because the jury expressly found in count fourteen, for example, that defendant "did knowingly possess a certain firearm with purpose to use it unlawfully against the person of another" and "during the course of possessing this firearm with purpose to use it unlawfully against the person of another, [did] use or threaten the immediate use of this firearm." This begs the question, however, of whether the 2002 convictions were first or second Graves Act offenses.

The available direct and circumstantial evidence confirms defendant's acquiescence in and adoptive admission of having committed crimes in 1988 that involved the use of firearms. The structure of the 1988 sentences, with the minimum terms activated only by the Graves Act, speaks volumes. Defendant has not collaterally attacked his 1988 plea, the ensuing convictions, or the sentences imposed thereupon. His argument, in so many words, asks us to act in willful blindness of that assent, as well as to ignore the totality of the circumstances, which includes defendant's acknowledgement as reported in the 1988 pre-sentence report of his involvement in, and guilt of committing, the firearms-related offenses.

In light of this, we harbor no uncertainty with regard to whether the 1988 offenses involved the use of firearms and thereby exposed defendant to a sentence enhancement in 2007. The sentences imposed on defendant at the earlier time are only explainable if viewed under the lens of the Graves Act. Accordingly, the revised sentence in 2007, which treated defendant as a second Graves Act offender and imposed mandatory extended terms, does violence neither to the Sixth and Fourteenth Amendments nor to our State's congruent constitutional provisions for due process. In short, there were no Jones, Apprendi, Blakely, Booker, Shepard, Natale, Abdullah, or Franklin violations in the manner that defendant was sentenced.

The arguments contained in defendant's pro se supplemental brief, which suggest other forms of unconstitutional fact-finding by the sentencing judge, including the ascertainment of aggravating factors pursuant to N.J.S.A. 2C:44-1(a), do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Our order fulfilled a previously-ordered remand by the Supreme Court. State v. Vargas, 188 N.J. 349 (2006).

2 The particularized argument concerning the Graves Act sentencing enhancement was not raised by defendant at the time that his first appeal was submitted to us on May 18, 2005. State v. Franklin, 184 N.J. 516 (2005) was decided by the New Jersey Supreme Court on August 2, 2005. In light of Franklin establishing a new rule of law, the Supreme Court gave pipeline retroactivity to the decision by applying it to defendants with cases on direct appeal as of the date of its decision and to defendants who had previously challenged their sentences under the principles of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), at trial or on direct appeal. Franklin, supra, 184 N.J. at 540. Defendant's case was in the pipeline when Franklin was decided, and arguably has remained in the pipeline ever since due to its perenniel status. Accordingly, we will address defendant's claims.

3 Defendant was convicted of second-degree burglary, N.J.S.A. 2C:18-2 on count six; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) on count eight; and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) on count eleven. The extended term sentences on counts eight and eleven run concurrently with the eighteen-year extended term sentence imposed on count fourteen.

4 We note an immaterial discrepancy in the judgment of conviction for the final charge on count two in indictment #1988-08-88. The judgment shows the statutory reference as N.J.S.A. 2C:12-1(b)(2), a third-degree crime, rather than -1(b)(1), the actual second-degree final charge, and the one for which defendant was sentenced in 1988.