STATE OF NEW JERSEY v. JOHN JOHNS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN JOHNS,

Defendant-Appellant.

_______________________________

March 28, 2014

 

Submitted October 21, 2013 Decided

 

Before Judges Harris and Kennedy.

 

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. 05-08-1618.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).

 

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

 

PER CURIAM

Defendant appeals from a sentence imposed following our opinion vacating the "consecutive aspects and overall length" of the initial sentence imposed by the trial court. State v. Johns, No. A-2423-08 (App. Div. May 2, 2011). Defendant argues, among other things, that the sentencing judge substantially exceeded the limited nature of the remand we had ordered and, instead, improperly reconfigured the entire sentence, increased base terms and parole ineligibility periods for two offenses, and applied additional aggravating factors not found by the original trial judge. We agree and, therefore, we vacate defendant's sentence and we remand to the Law Division for re-sentencing in accordance with this opinion and our prior opinion.

I.

We briefly set forth the procedural history and facts pertaining to this appeal. On August 2, 2005, an Atlantic County Grand Jury returned an indictment charging defendant and Basim K. Reid with several crimes arising from armed robberies which had occurred at two different motels in Egg Harbor on April 24 and 25, 2005. The indictment charged defendant and Reid with two counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (counts one and eight); four counts of first-degree robbery two by use of force while armed, N.J.S.A. 2C:15-1(a)(1) (counts two and nine) and two by causing fear of immediate bodily injury while armed, N.J.S.A. 2C:15-1 (counts three and ten); two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts four and eleven); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts five and twelve); one count of third-degree aggravated assault by attempting to or causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count six); and two counts of fourth-degree aggravated assault for pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (counts seven and thirteen).1

Defendant was tried before a jury in May 2008, and the jury found defendant guilty of all the charges with the exception of the charge in count one, conspiracy to commit robbery on April 24, 2005. We briefly recount the facts of the case, as set forth in our prior opinion:

The first of the robberies the jury found defendant to have committed occurred around 2 a.m. on April 24, 2005[,] in the Egg Harbor Econo Lodge. The front desk clerk, Richard Bennett, was in the back office when defendant and his confederate, Basim Reid, entered the lobby. After he saw defendant enter the hotel by viewing the monitor of the motel security camera, [Bennett] came out front and saw defendant standing behind the counter with a gun. Defendant ordered Bennett to his knees and began rifling through the cabinets and cash register. After finding little money in the cash register, defendant became very aggravated and demanded the money from Bennett's wallet. Thereafter, defendant took the money from Bennett's wallet and hit Bennett on the side of his head with the gun he was wielding, causing Bennett to lose a tooth. Defendant and Reid fled with a total of approximately $2100.

The second of the robberies the jury found defendant to have committed occurred around 3:30 a.m. on April 25, 2005[,] in the Egg Harbor Ramada Limited. Defendant first entered the motel at approximately 2:30 a.m. with a "large wad" of cash in his hands, and asked about room rates. However, when the front desk clerk, Andrew King, told defendant he had to produce identification, defendant declined to rent a room. Around an hour later, defendant returned to the motel and pointed a gun at King as he ran towards the front desk. King fell on the floor for his own protection, and defendant then jumped over the desk, after which Reid joined him. Defendant demanded to know the location of the money on the premises, and King told him. Defendant and Reid removed about $380 from a cash drawer and safe, and fled.

 

At trial, Bennett identified defendant as one of the persons who robbed him, and although King was unable to identify defendant as one of the perpetrators of the Ramada robbery, he did identify him as the person who had entered the motel at 2:30 a.m. and asked to rent a room. In addition, the State introduced videotapes of both robberies recorded by security cameras and defendant's tape-recorded confession to commission of the robberies. The State also presented the testimony of two fingerprint experts who concluded that latent fingerprints found behind the counter of the Econo Lodge were defendant's fingerprints.

 

Defendant took the stand and denied he had committed either robbery. Defendant also testified that his confession to the robberies was the product of police coercion.

 

Defendant also presented the testimony of his sister and two brothers that defendant was with them in Atlantic City from 9:30 p.m. until around 11:30 p.m. on the nights of both Egg Harbor robberies. However, these witnesses could not vouch for defendant's whereabouts around the time of the robberies.

 

[Johns, supra, slip op. at 3-5.]

The trial judge sentenced defendant to consecutive sixteen-year terms of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the two armed robberies,
N.J.S.A. 2C:15-1. In addition, the court sentenced defendant to consecutive five-year terms of imprisonment for aggravated assault upon Bennett, N.J.S.A. 2C:12-1(b)(2), and two counts of possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). On the other offenses defendant was found to have committed, the trial judge either imposed concurrent terms or merged the convictions. Thus, defendant's aggregate term was forty-seven years imprisonment, with thirty-two of those years subject to NERA parole ineligibility.2

In imposing this sentence, the trial judge identified three aggravating factors that applied: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge determined that no mitigating factors applied. He found the aggravating factors "substantially outweigh" the mitigating factors. Defendant appealed.

We upheld defendant's convictions, but remanded for resentencing. Johns, supra, slip op. at 20. We explained that defendant "possessed the same handgun in both robberies" and that "continuing possession of the same weapon does not involve separate wrongs that could justify the imposition of consecutive sentences." Id. at 16-17. We further stated that the April 24, 2005 aggravated assault charges counts six and seven and robbery counts two and three "were not predominantly independent of each other[,] did not involve separate acts of violence or threats of violence[,] and did not involve multiple victims." Id. at 19. We added that the trial court did not undertake a comprehensive analysis of the factors identified in State v. Yarbough, 100 N.J.627 (1985), cert. denied, 465 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), respecting the imposition of consecutive sentences and "also failed to separately consider the fairness of the overall sentence." Johns, supra, slip op. at 19.

Consequently, we concluded that "the consecutive aspects and overall length of the remainder of defendant's sentence must be reconsidered." We stated:

we question the appropriateness of imposing consecutive sentences for the armed robbery of Bennett and the aggravated assault committed upon him during the course of that robbery. These two crimes and their objective were not "predominantly independent of each other"; did not involve "separate acts of violence or threats of violence"; were not "committed at different times or separate places"; and did not involve "multiple victims." Yarbough, supra, 100 N.J. at 644. The infliction of physical harm upon the victim of an armed robbery may be an appropriate factor to consider in determining the length of the sentence for that offense, see N.J.S.A. 2C:44-1(a)(2), but it is not ordinarily a basis for imposition of a consecutive sentence for assault.

 

We also conclude that the trial court failed to provide an adequate statement of reasons for imposition of consecutive sentences for the two robberies and the overall sentence for those offenses. The court seemed to be operating under the assumption that consecutive sentences should be automatically imposed if a defendant is convicted of multiple robberies. That is not what our law provides. Our Supreme Court has recently reaffirmed that a "comprehensive" analysis of the Yarbough criteria must be conducted "whenever consecutive sentences are considered." State v. Miller, 205 N.J. 109, 130 (2011). The trial court did not undertake that analysis in this case. The court also failed to separately consider "the fairness of the overall sentence." [State v.] Abdullah, [ ] 184 N.J. 497, [ ] 515 [(2006)]. Therefore, defendant must be resentenced.

 

Accordingly, defendant's convictions are affirmed, but his sentence is vacated and the case is remanded to the trial court for resentencing in conformity with the principles set forth in this opinion.

 

[Johns, supra, slip op. at 18-20.]

 

By the time of the remand, however, the trial judge was no longer available and, therefore, another judge handled the re-sentencing.

On re-sentencing, the judge imposed a twenty-year term of imprisonment, subject to the NERA period of parole ineligibility, for the first armed robbery (count three), and a nineteen-year term of imprisonment, subject to NERA, for the second armed robbery (count ten), to run consecutively. Counts two (armed robbery) and five (possession of a weapon for an unlawful purpose) were merged with count three, and counts nine (armed robbery) and twelve (possession of a weapon for an unlawful purpose) were merged with count ten. The remaining counts were all to run concurrently. By increasing the base terms on the armed robberies from sixteen years to twenty and nineteen years respectively, the judge effectively reconfigured defendant's aggregate term of imprisonment from forty-seven years, with twenty-seven years of parole ineligibility, to thirty-nine years, with thirty-three years of parole ineligibility.

In imposing this sentence, the judge found no mitigating factors and identified five aggravating factors that applied: the nature and circumstances of the offense, and whether it was committed in an especially heinous, cruel or depraved manner, N.J.S.A. 2C:44-1(a)(1); the gravity of harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2); risk of re-offending, N.J.S.A. 2C:44-1(a)(3); extent of defendant's criminal record, N.J.S.A. 2C:44-1(a)(6); and deterrence, N.J.S.A. 2C:44-1(a)(9).

II.

Defendant raises the following arguments on appeal:

I. THE FINDINGS OF THE APPELLATE DIVISION PANEL IN THE PRIOR APPEAL BECAME THE LAW OF THE CASE, LIMITED THE REMAND PROCEEDINGS, AND WERE BINDING ON THE TRIAL COURT ON REMAND.

II. THE RESENTENCING JUDGE ABUSED HIS DISCRETION IN IMPOSING TERMS THAT WERE MANIFESTLY EXCESSIVE UNDER ALL OF THE APPLICABLE CIRCUMSTANCES.

 

III. THE TRIAL JUDGE ABUSED HIS DISCRETION IN FAILING TO MERGE OFFENSES.

 

We agree that the judge on re-sentencing exceeded the scope of the remand and, further, erred in imposing harsher sentences on the armed robbery convictions with the consequence of increasing defendant's parole ineligibility period under NERA, thereby requiring, once again, vacating the sentences imposed and remanding to the Law Division for resentencing.

Initially, we observe that our prior remand was not unrestricted. Rather, we directed the Law Division to consider several discrete issues: 1) whether the aggravated assaults occurring on April 24, 2005, and the armed robberies on the same date "were not predominantly independent of each other[,] did not involve separate acts of violence or threats of violence [,] and did not involve multiple victims;" 2) whether the "possession of the same unpermitted handgun in the commission of two offenses support[ed] a finding of two violations of N.J.S.A. 2C:39-5(b);" (3) "whether any consecutive sentences at all were warranted for possession of a handgun without a permit;" and (4) "the consecutive aspects and overall length of the remainder of defendant's sentence."

We vacated defendant's sentence and remanded "for sentencing in conformity with the principles set forth in this opinion." In the resentencing, however, the judge addressed issues beyond those issues we identified, increased the base sentences for the armed robberies, thereby imposing longer periods of parole ineligibility under NERA, and, further, applied aggravating factors not found by the trial judge.

The State, relying upon State v. Taveres, 286 N.J. Super. 610, 615 (App. Div.), certif. denied, 144 N.J. 376 (1996), argues that the sentencing judge was entitled to conduct the sentencing proceedings "anew" upon remand, and thus did not err in identifying and applying additional aggravating factors or in reconfiguring the sentences imposed. See State v. Espino, 264 N.J. Super. 62, 69 (App. Div. 1993) ("component parts of an aggregate sentence may be restructured upon resentencing without violating the defendant's due process or double jeopardy rights"). The State does concede, however, that the increase in defendant's parole ineligibility term was improper under State v. Cooper, 402 N.J. Super. 110 (App. Div. 2008) and "consents to a reduction in the aggregate term of imprisonment to [thirty-two] years which would result in a parole ineligibility term of approximately [twenty-seven] years that which was imposed at the original sentencing."

The State's concession, in our view, is the very least that is required here. We require more, however. In State v. Randolph, 210 N.J. 330, 350 (2012), our Supreme Court explicitly recognized that "[r]emands for resentencing in New Jersey, as elsewhere, cover a range of proceedings" and, citing United States v. Bryant, 643 F.3d 28, 32 (1st Cir. 2011), observed:

[R]esentencings are various in kind and many are very narrow. At one extreme, the resentencing ordered may be as unconstrained and open-ended as an initial sentencing; but at the other extreme, a remand may be so focused and limited that it involves merely a technical revision of the sentence dictated by the appeals court and calls for no formal proceeding -- say, modifying the judgment to cut back to its legally permitted length a supervised release term that exceeded what the statute permits.

 

[Randolph, supra, 210 N.J. at 350.]

 

As we explained earlier, our first remand in this case was not "unconstrained and open-ended" and thus did not license the Law Division to reconsider defendant's sentence as if defendant were appearing for an initial sentencing. Nonetheless, the Law Division judge misconstrued our directions on remand and proceeded to readjust and reconfigure defendant's sentence as if the proceeding were an initial sentencing, to the point of even identifying and applying new aggravating factors.

Accordingly, we once again vacate defendant's sentence. We remand the matter to the Law Division to consider: (1) whether counts three and ten should be the subject of consecutive sentences; (2) if the court determines that consecutive sentences are appropriate on those counts, what the appropriate length of sentence should be on each count, subject to the limitation that the court's imposition of sentence on each of those counts may not exceed sixteen years, subject to NERA; (3) whether any further merger of offenses is appropriate; and (4) the "fairness of the overall sentence." In making these determinations, the court shall apply only the aggravating factors factors three, six and nine identified by the original sentencing judge, together with any post-sentencing rehabilitation information respecting defendant. See State v. Towey, 244 N.J. Super. 582, 593-94 (App. Div.), certif. denied, 122 N.J. 159 (1990).

Defendant's sentence is vacated and the matter is remanded to the Law Division for resentencing subject to the limitations and requirements set forth in this opinion. We direct the resentencing to occur within ninety days of this opinion. We do not retain jurisdiction.

1 Counts one to seven arose from the events that occurred on April 24, 2005, and the remaining counts arose from the events of April 25, 2005.

2 Defendant subsequently entered into a plea bargain with respect to an indictment charging him with several armed robberies in Atlantic City. Defendant pled guilty to one second-degree robbery, for which he was sentenced to a six-year term of imprisonment, subject to NERA ineligibility, to be served consecutively to his sentence for the Egg Harbor robberies, and the charges based on the other five robberies were dismissed.