STATE OF NEW JERSEY v. WILLIAM SIMKINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03318-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM SIMKINS, JR., a/k/a

WILLIAM M. SIMKINS, WILLIAM

SIMPKINS,

Defendant-Appellant.

________________________________________________________________

November 14, 2013

Submitted October 29, 2013 Decided

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-08-02024.

Jacobs & Barbone, P.A., attorneys for appellant (Louis M. Barbone and YooNieh Ahn, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief.

PER CURIAM

Defendant appeals the severity of his sentence. Although indicted for second-degree vehicular homicide, N.J.S.A. 2C:11-5, and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2, he was convicted at trial only of second-degree leaving the scene of a fatal motor vehicle accident, N.J.S.A. 2C:11-5.1.1 He was sentenced to seven and one-half years with no period of parole ineligibility. As the imposition of this sentence was within the discretion of the trial court, we affirm.

In the early morning hours of September 6, 2010, after drinking and smoking marijuana, the sixteen-year-old victim and two other boys rode their bicycles by defendant's home.2 The boys kicked defendant's3 parked car's side-view mirror. Defendant jumped into his car and sped after the three boys.4 He struck and killed the victim, who defendant maintained caused the accident by turning his bicycle into defendant's car. Defendant left the scene, but approximately three hours later turned himself in to the local police station, admitting he was the driver.

Defendant was thirty-three years old at the time he was sentenced on December 4, 2012. His prior record consisted of two juvenile adjudications in 1992, a prior adult conviction for possession of a BB gun in 2001, and disorderly persons convictions for simple assault in 2005 and hindering apprehension in 2007 and again in 2008. He also had numerous motor vehicle infractions on his driving record. On the positive side, he was an involved father-figure for his five nieces and nephews and his girlfriend's four adopted children.

Defendant raises the following points on appeal:

POINT I: STANDARD FOR REVIEW

POINT II: THE TRIAL COURT ERRED IN REJECTING THE FACTS AND CIRCUMSTANCES COMPELLING SENTENCE IN THE THIRD DEGREE PURSUANT TO N.J.S.A. 2C:44-1(f)(2).

POINT III: THE TRIAL COURT ERRED IN REJECTING APPLICABLE MITIGATING FACTORS 5, 7, 10 AND 12 AT THE TIME OF SENTENCING, WHICH WERE SUPPORTED BY THE RECORD.

a. MITIGATING FACTOR (5) CONDUCT OF OTHERS INDUCED OR FACILITATED THE CRIME.

b. MITIGATING FACTOR (7) DEFENDANT HAS LED A LAW-ABIDING LIFE FOR A SUBSTANTIAL PERIOD OF TIME BEFORE THE PRESENT OFFENSE.

c. THE CHARACTER REFERENCE STATEMENTS AND LETTERS ARE COMPELLING EVIDENCE OF APPLICABILITY OF MITIGATING FACTORS 8, 9, 10 AND 11.

In determining the appropriate sentence to be imposed, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified in N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 506-07 (2005). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a court adheres to the sentencing guidelines, the sentence it imposes should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court fortified the authority of sentencing judges, reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:

Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence.

[Id. at 612.]

Defendant argues that based on the facts of the case and the many letters of support provided by him, the trial judge abused his discretion in not finding by clear and convincing evidence that the mitigating factors substantially outweighed the aggravating factors and the interest of justice demanded a reduction in degree of the crime from second to third degree. N.J.S.A. 2C:44-1(f)(2); Megargel, supra, 143 N.J. at 504-05 (reversing because the interest of justice did not demand the downgrade).

The judge found present as "strong" aggravating factors number three, "[t]he risk that the defendant will commit another offense" and number nine, "[t]he need for deterring the defendant and others from violating the law[.]" N.J.S.A. 2C:44-1(a)(3),(9). He found as a "moderate" aggravating factor number six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[.]" N.J.S.A. 2C:44-1(a)(6). The judge also found as "marginal" mitigating factor number eight, that "[t]he defendant's conduct was the result of circumstances unlikely to recur" and number nine, "[t]he character and attitude of the defendant indicate he is unlikely to commit another offense[.]" N.J.S.A. 2C:44-1(b)(8),(9). The judge found as a "significant and strong" mitigating factor number eleven, that "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[:]" the nine children for whom he is a surrogate father. N.J.S.A. 2C:44-1(b)(11). The judge found that the aggravating factors "very slightly" outweighed the mitigating factors and sentenced defendant to a term of years at the midpoint of a second-degree term. See N.J.S.A. 2C:43-6(a)(2). Judge Donio's thorough weighing of sentencing factors was based on sufficient credible evidence in the record and did not represent an abuse of discretion. The judge presided over the jury trial and was well aware of the circumstances surrounding defendant's conviction for leaving the scene of a fatal accident.

Defendant argues that the judge should have found that "[t]he victim of the defendant's conduct induced or facilitated its commission[,]" mitigating factor five, N.J.S.A. 2C:44-1(b)(5). As the judge stated, the victim in no way induced defendant not to report the fatal accident even if the victim did swerve into defendant's car. The judge also determined defendant had a prior criminal record that did not permit an application of mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), because that factor required proof that defendant did not have a "history of prior delinquency or criminal activity or [that he] has led a law-abiding life for a substantial period of time." Defendant's argument that mitigating factor seven applied and that mitigating factors eight, nine and eleven should have been given greater weight by the judge, are unpersuasive in light of the considerable discretion accorded the sentencing judge to weigh and balance the various factors.

Defendant violated probation twice in the past, and his conviction for a second-degree crime carries with it a presumption of incarceration, N.J.S.A. 2C:44-1(d). Thus, defendant's argument that the judge should have found mitigating factor ten, N.J.S.A. 2C:44-1(b)(10), that "defendant is particularly likely to respond affirmatively to probationary treatment" is also unavailing.

Defendant mentions mitigating factor twelve in the heading of Point III of his brief, but concedes that the mere act of turning himself in does not implicate factor twelve. Defendant did not assist in identifying another perpetrator nor in solving any other crime. See State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008). Judge Donio properly exercised his discretion in sentencing defendant.

Affirmed.

1 The judge also convicted defendant of motor vehicle offenses that are not the subject of this appeal.

2 We were not provided with a copy of the trial transcript and thus obtained the facts from the presentence report, which at the sentencing hearing defense counsel noted was accurate.

3 Although not absolutely clear from the record, it appears that the side-view mirror vandalized was on defendant's car.

4 Although he admitted to speeding, defendant claimed he went out for cigarettes and not to chase the boys.