STATE OF NEW JERSEY v. ANTHONY SIMS, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0839-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY SIMS, JR., a/k/a ANT,

Defendant-Appellant.

_______________________________________

May 11, 2012

 

Submitted March 20, 2012 - Decided

 

Before Judges Baxter, Nugent and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-03-0605.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the brief).

 

Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a mistrial caused by the jury deadlock, defendant entered a retraxit plea of guilty to amended counts one and three, second-degree criminal attempt and manslaughter -- passion, N.J.S.A. 2C:5-1 and 2C:11-4b(2); and count two, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1). He was sentenced to concurrent seven-year terms of imprisonment on counts one and three, each subject to the terms of N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), and a three-year period of parole supervision. The court also imposed a concurrent five-year term of imprisonment on count two with a three-year period of parole ineligibility. The statutory fines, penalties and assessments were ordered, as well as $13,828.67 in restitution for the victim, Anthony Graves. Defendant appeals from a judgment of conviction. We affirm the conviction, but reverse the order of restitution and remand for a hearing on defendant's ability to pay.

I.

The charges against defendant stem from a shooting during an altercation between Anthony and Brandon Graves and defendant. Defendant testified at trial and during his plea, that Anthony and Brandon Graves came to his home at 11:30 p.m. and challenged him to a fight over drug monies owed to them by defendant s mother. Before going outside, defendant retrieved a housemate s loaded revolver from an upstairs closet, and concealed it on his hip. During the ensuing altercation, as Brandon and Anthony each reached under their clothing to grab pistols, defendant shot them. The bullet that struck Anthony passed through his hand and lodged in his throat. As a result, Anthony lost a finger, and his throat and thyroid function were affected, necessitating significant medical treatment. The bullet that struck Brandon entered his right shoulder and passed through his spinal column, permanently paralyzing him from the waist down.

A jury trial was held over thirteen days and concluded with the trial court declaring a mistrial after the jury could not reach a verdict on counts one through four. The jury found defendant not guilty on counts five and six1 and those charges were dismissed. Thereafter, defendant pleaded guilty, pursuant to a negotiated plea agreement, to amended counts one and three, second-degree criminal attempt and manslaughter -- passion, N.J.S.A. 2C:5-1 and 2C:11-4b(2); and count two, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1). Count four of the indictment was dismissed. Defendant's guilty plea allowed him to reserve all appellate issues.

II.

Defendant raises the following contentions on appeal.

POINT I:

IT WAS ERROR FOR THE TRIAL COURT TO ADMIT THE PHOTOGRAPHIC ARRAYS INTO EVIDENCE.

 

POINT II:

THE TESTIMONY OF INVESTIGATOR WILBERT OF THE MONMOUTH COUNTY PROSECUTOR S OFFICE WAS GROSSLY PREJUDICIAL IN THAT IT WAS RIFE WITH HEARSAY, INNUENDO, INFLAMMATORY AND IRRELEVANT INFORMATION AND DEPRIVED DEFENDANT OF A FAIR TRIAL (Partially Raised Below).

POINT III:

THE COURT S REFUSAL TO ALLOW DEFENDANT TO PRESENT TESTIMONY REGARDING GANG AFFILIATION OF THE FIVE PERCENTERS WAS ERROR.

 

POINT IV:

IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT S REQUEST FOR A "FALSE IN ONE, FALSE IN ALL" CHARGE.

 

POINT V:

THE RESTITUTION ORDER ENTERED BY THE COURT MUST BE VACATED (Not Raised Below).

 

POINT VI:

THE SENTENCE IMPOSED UPON THE DEFENDANT WAS EXCESSIVE AND SHOULD BE REDUCED (Not Raised Below).

 

POINT VII:

THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL (Not Raised Below).

 

Defendant argues in points one through four and seven, that erroneous rulings during the trial entitle him to a new trial. We disagree.

"Generally, a guilty plea constitutes a waiver of all issues that were or could have been raised in prior proceedings." State v. Smith, 307 N.J.Super. 1, 7 (App. Div. 1997) (citations omitted), certif.denied, 153 N.J. 216 (1998). "[T]here are three exceptions to the general rule of waiver." Id. at 8.

Notwithstanding entry of a guilty plea, a defendant may appeal from the denial of his motion to suppress as permitted by [Rule] 3:5-7(d), from the denial of his application for admission into a pretrial intervention program pursuant to [Rule] 3:28(g), and, with consent of the court and approval of the prosecutor, from any other pretrial order when the issue is preserved under [Rule] 3:9-3(f).

 

[Ibid.]

The exception under Rule 3:9-3(f) provides, in pertinent part, that "[w]ith the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion."

Defendant s arguments fail because, given the jury's inability to convict, any trial rulings were ultimately not adverse to him. "[A] mistrial caused by a jury deadlock 'is not a judgment or order in favor of any of the parties' and 'lacks the finality of a judgment, and means that the trial itself was a nullity.'" Statev. Cruz, 171 N.J. 419, 426 (2002) (citation omitted). "[T]he effect of a mistrial is to start anew. The parties are returned to their original positions as if there had been no trial at all." State v.Campbell, 414 N.J. Super. 292, 298 (App. Div. 2010). "[T]he declaration of [a] mistrial render[s] nugatory all of the proceedings during the first trial." Id. at 298-99 (internal quotation marks and citation omitted).

The trial errors asserted by defendant cannot serve as a basis to reverse a judgment of conviction that did not result from the trial.

We now turn to point six in which defendant argues that the sentence term of seven years with an eighty-five percent period of parole ineligibility was excessive. Defendant concedes that the court sentenced him pursuant to the plea agreement, but maintains that the judge erred by finding aggravating factor two, "The gravity and seriousness of harm inflicted on the victim. . . ." N.J.S.A. 2C:44-1a(2). Defendant asks this court to modify his sentence and reduce it to a term of five years imprisonment, subject to NERA.

A judge is obligated to consider aggravating and mitigating factors for the purpose of imposing a fair and uniform sentence. Statev. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Natale, 184 N.J. 458, 486 (2005)). The judge's finding on these factors must be supported by competent evidence in the record. State v.Blackmon, 202 N.J. 283, 296-97 (2010). However, the weight attributed to each factor lies within the discretion of the sentencing court. State v. Dalziel, 182 N.J. 494, 504-05 (2005).

Our review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. Blackmon, supra, 202 N.J. at 297. If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court is obliged to affirm. State v.Jabbour, 118 N.J. 1, 6 (1990). Appellate courts only retain authority to modify a sentence "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v.Roth, 95 N.J. 334, 364 (1984).

N.J.S.A. 2C:44-1a(2) allows a sentencing judge to consider "[t]he gravity and seriousness of harm inflicted on the victim." There was more than sufficient, credible evidence to support the judge's finding that aggravating factor two applied, and the judge properly identified and weighed the aggravating and mitigating factors. The facts adduced during the plea hearing, and in the presentencing report, established that the "harm" inflicted on the victims was especially "grav[e]" and "serious." Ibid. Defendant admitted that he intentionally shot the victims and that, as a result, both victims could have been killed. The injuries suffered by the victims were substantial, leaving one permanently paralyzed and confined to a wheelchair, and the other permanently disfigured after he was shot in the throat and lost a finger. The judge properly considered these injuries in support of aggravating factor two.

After considering the facts and circumstances of the shooting, the judge carefully identified and balanced the aggravating and mitigating factors,2 found that the aggravating factors substantially outweighed the mitigating factors, and imposed the sentence recommended under the plea agreement. Defendant's sentence does not shock the judicial conscience and the judge did not abuse his discretion.

III.

Lastly, in point five, defendant argues that the judge erred by ordering the payment of $13,828.67 in restitution without having conducted a hearing on defendant's ability to pay. The State concedes that this was error, and urges this court to remand for a hearing as to defendant's ability to pay.

N.J.S.A. 2C:44-2 sets forth the criteria a court must weigh when imposing fines and restitution. In pertinent part, the statute provides:

b. The court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment or probation that may be imposed if:

 

. . . .

 

(2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution.

c. (1) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.

 

[N.J.S.A. 2C:44-2b(2),c(1)(emphasis added).]

 

Specifically,

"[i]n determining the amount and method of payment of restitution," the sentencing judge must consider "all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay."

[State v. Jones, 347 N.J.Super. 150, 152 (App. Div.) (alteration in original) (citation omitted), certif. denied, 172 N.J. 181 (2002).]

Here, the court failed to conduct the required hearing on defendant's ability to pay prior to imposing the $13,828.67 restitution. We remand for a hearing on defendant's ability to pay.

A

ffirmed in part, reversed in part and remanded for a restitution hearing. We do not retain jurisdiction.

1 Although the trial transcript reflects the jury foreperson reporting a partial verdict on counts three and six, the clerk polled the jury on counts five and six. The judgment of conviction indicates the dismissal of counts four, five and six.

2 In addition to aggravating factor two, the judge found: aggravating factor three (the risk that defendant will commit another offense); aggravating factor six (the extent of defendant's prior criminal record); and aggravating factor nine (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6), (9). The judge also found: mitigating factor three (that defendant acted under strong provocation); mitigating factor five (that the victims induced or facilitated the commission of the offense); and mitigating factor eleven (that imprisonment would entail excessive hardship to defendant's child and girlfriend). N.J.S.A. 2C:44-1b(3), (5), (11).