STATE OF NEW JERSEY v. SEAN R. HERCUS

NOT FOR PUBLICATION WITHOUT THE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.

SEAN R. HERCUS,

Defendant-Appellant.

_________________________________

December 18, 2015

 

Submitted September 2, 2015 Decided

Before Judges Leone and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 12-08-1185.

Evan F. Nappen, attorney for appellant (Louis P. Nappen, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Sean R. Hercus pled guilty to unlawful possession of a handgun. He appeals from his August 21, 2014 judgment of conviction. We affirm, but remand for clarification regarding the sentence.

I.

Defendant admitted the following facts in his plea colloquy. Defendant, a Pennsylvania resident, was having significant mental issues. He took his gun, got into a car, and commenced "a two week kind of joyride." During those two weeks, he eluded Pennsylvania police officers who were looking for him, and an all-points bulletin was issued.1

Defendant entered New Jersey. On May 25, 2012, the police in Burlington County had reason to pull over defendant, and arrested him.2 The police requested, and defendant agreed to, a search of his car, and discovered a gun.3 Defendant admittedly knew that he had the gun with him, and that he had no license to carry the gun.

The grand jury charged defendant with second-degree unlawful possession of a handgun without a New Jersey permit, N.J.S.A. 2C:39-5(b), and fourth-degree possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f)(1). Defendant was separately charged with being a fugitive from justice, N.J.S.A. 2A:160-21. Under the Graves Act, the charge of unlawful possession of a handgun carried a maximum sentence of ten years in prison with a mandatory minimum term of three years. N.J.S.A. 2C:43-6(c) (2008).

On June 9, 2014, pursuant to a plea agreement, defendant pled guilty to unlawful possession of a handgun. The State agreed to make a motion under N.J.S.A. 2C:43-6.2 and recommend five years in prison with one year of parole ineligibility, and to dismiss the other charges, including the six motor vehicle summonses. Defendant agreed to waive his appeal. On August 15, 2014, the trial court imposed the recommended sentence.

II.

On November 3, 2014, defendant filed a notice of appeal, which he was allowed to file as if within time. After being heard on the excessive sentencing oral argument calendar, the appeal was listed for briefing. In his brief, defendant argues

POINT 1: THE SPECIFIC REMEDIAL ACTION(S) SOUGHT BY DEFENDANT PURSUANT TO THE ATTORNEY GENERAL'S CLARIFICATION OF "GRAVES ACT" 2008 DIRECTIVE IS A REMAND FOR SENTENCING IN ACCORDANCE WITH THE DIRECTIVE UNDER WHICH THE DEFENDANT SHOULD BE ALLOWED PROBATION.

POINT 2: THE DEFENDANT COULD LAWFULLY "CARRY," "TRANSPORT," OR "POSSESS" THE FIREARM IN THE TRUNK OF HIS CAR IN PENNSYLVANIA.

POINT 3: THE PROSECUTOR IN THE MATTER BELOW DECIDED TO REDUCE TO ONE YEAR THE DEFENDANT'S MANDATORY MINIMUM SENTENCE, RATHER THAN TO PLACE DEFENDANT ON PROBATION WITH IMPRISONMENT NOT EXCEEDING 364 DAYS AS ALTERNATIVELY AUTHORIZED UNDER N.J.S.A. 2C:43-6.2.

POINT 4: STATE V. WATERS, 439 N.J. SUPER. 215 (APP. DIV. 2015), DOES NOT IMPACT THE CASE AT HAND.

Defendant does not challenge the validity of his guilty plea. He is challenging only his sentence. "[A] defendant may appeal a criminal sentence even if she had agreed to waive the right of appeal as part of a plea agreement." State v. Sainz, 107 N.J. 283, 294 (1987).4 However, there is a "presumption of reasonableness that attaches to criminal sentences imposed on plea bargain defendants." Ibid. Moreover, "[a]ppellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014). We must hew to that standard of review.

III.

We first address defendant's predicate argument that his possession of the handgun in Pennsylvania was lawful. He asserts that having the handgun in his car does not violate Pennsylvania's firearms laws because it was not concealed on his person. To the contrary, "any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a [crime]." 18 Pa. C.S.A. 6106(a) (emphasis added). Thus, "a Pennsylvania license is required to carry a firearm in a vehicle." Commonwealth v. McKown, 79 A.3d 678, 685 (Pa. Super. 2013), appeal denied, 91 A.3d 162 (Pa. 2014).

At the plea colloquy, defendant represented that the handgun had belonged to his grandfather but was now his, and that he had a license in Pennsylvania but no license to carry. On appeal, he has attached a Pennsylvania State Police "Application/Record of Sale" transferring ownership of a .38 caliber handgun to defendant. Such an application to purchase/record of sale under 18 Pa. C.S.A. 6111(b) is distinct from a license to carry a firearm under 18 Pa. C.S.A. 6109. 18 Pa. C.S.A. 6124(1), (4)-(5). Ownership of a firearm may be transferred from a grandparent to grandchild, but "the person receiving the firearm is not exempt from other provisions of the Firearms Act, including, but not limited to, the requirements necessary for a license to carry firearms." Allegheny Cty. Sportsmen's League v. Rendell, 860 A.2d 10, 22 n.7 (Pa. 2004).

A firearm owner can get a license "for the purpose of carrying a firearm concealed on or about one's person or in a vehicle throughout this Commonwealth" only by applying to a sheriff using a prescribed application form; showing one of the limited reasons for obtaining a firearm license; undergoing an investigation by the sheriff; and receiving a license bearing the person's photograph. 18 Pa. C.S.A. 6109(a)-(e). Defendant admittedly lacked a Pennsylvania license to carry.

Defendant argues he was just transporting his gun in his trunk. He cites a preamble to 1995 Pennsylvania House bill which mentions the right to bear arms and states that act's purpose was not to place any undue or unnecessary restrictions on the transportation of firearms. However, that act did not alter the pertinent statute, 18 Pa. C.S.A. 6106, which "restricts an unlicensed person from . . . transporting a loaded firearm in a vehicle." McKown, supra, 79 A.3d at 687-91 (holding 6106 does not violate the right to bear arms).

18 Pa. C.S.A. 6106(b) does provide that the criminal prohibition on carrying without a license does not apply to

(8) Any person while carrying a firearm which is not loaded and is in a secure wrapper from the place of purchase to his home or place of business, or to a place of repair, sale or appraisal or back to his home or place of business, or in moving from one place of abode or business to another or from his home to a vacation or recreational home or dwelling or back . . . .

. . . .

(14) A person lawfully engaged in the interstate transportation of a firearm as defined under 18 U.S.C. 921(a)(3) (relating to definitions) in compliance with 18 U.S.C. 926A (relating to interstate transportation of firearms).

Defendant's carrying the loaded handgun on his two-week joyride through Pennsylvania and New Jersey obviously did not fall within 18 Pa. C.S.A. 6106(b)(8). Nor did it fall within 18 Pa. C.S.A. 6106(b)(14), because 18 U.S.C.A. 926A permits a person to transport a firearm in the trunk of a vehicle only "for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded." Defendant "had no federally-protected right under 18 U.S.C.A. 926A to transport his loaded revolver[,]" In re Two Seized Firearms, 127 N.J. 84, 91, cert. denied, 506 U.S. 823, 113 S. Ct. 75, 121 L. Ed. 2d 40 (1992). Nor did he have a right under 926A to carry a handgun between Pennsylvania and New Jersey, both places where he could not lawfully carry the gun. State v. Waters, 439 N.J. Super. 215, 231 (App. Div. 2015). Thus, "defendant failed to show that carrying the firearm was legal under [Pennsylvania] law." Id. at 228.

IV.

Because defendant could not carry his handgun lawfully in Pennsylvania, he cannot rely on the Attorney General's September 24, 2014 memorandum entitled Clarification of "Graves Act" 2008 Directive with Respect to Offenses Committed by Out-of-State Visitors From States Where Their Gun-Possession Conduct Would Have Been Lawful (Sept. 24, 2014) (2014 Clarification).5 The subject of the 2014 Clarification was an otherwise law-abiding resident of another state who "brings into New Jersey a firearm that had been acquired lawfully and that could be carried lawfully by that visitor in the visitor's home jurisdiction." Id. at 1, 2. The 2014 Clarification

applies only to Graves Act cases where the defendant is an out-of-state resident who produces proof that: 1) the firearm had been lawfully acquired in another jurisdiction, 2) defendant's possession would have been lawful in his or her home jurisdiction, and 3) defendant was under the misimpression that such possession was lawful in New Jersey.

[Id. at 4.]

Defendant's possession of the handgun in the trunk of his car would not have been lawful in Pennsylvania. "Thus, the 2014 Clarification is inapplicable here because the second circumstance is [not met], and defendant offered no proof of the third circumstance." Waters, supra, 439 N.J. Super. at 240.

Moreover, the 2014 Clarification was not issued until after defendant's August 15, 2014 sentencing. "[T]he 2014 Clarification is simply a statement of the current policy of the Attorney General," and "does not alter the validity or finality of judicial orders." Waters, supra, 439 N.J. Super. at 238-39. "[T]he validity of a trial court's [sentence] must be determined based on the applicable law, not on subsequent changes in prosecutorial policy." See id. at 239.

The 2014 Clarification also stated

On August 8, 2014, . . . the Division of Criminal Justice instructed all County Prosecutors to refrain from taking any dispositive action or from sentencing any defendant in any case where a resident of another state brought into New Jersey a firearm that had been acquired lawfully and that could be carried lawfully by that visitor in the visitor's home jurisdiction. The Division of Criminal Justice imposed this temporary hold to enable the Division to gather information about how these cases are handled across the State, and to assess the need for further guidance from the Attorney General[.]

[2014 Clarification, supra, at 3 (emphasis added).]

Citing this statement, defendant argues that his sentencing should have been postponed. However, because he could not lawfully carry his firearm in Pennsylvania, his case was not one in which the County Prosecutor was instructed to refrain from taking any dispositive action or from sentencing. Moreover, defendant cannot show that his due process rights were violated by citing a memorandum from the Attorney General to county prosecutors.

In any event, defendant has not shown that the outcome would have been different had sentencing been delayed to await the inapplicable 2014 Clarification. Defendant does not claim he would have been entitled to Pre-Trial Intervention (PTI) under the 2014 Clarification.6 Further, the 2014 Clarification would not have called for a "rebuttable presumption that the prosecutor will tender an initial plea offer that authorizes the court upon conviction to impose a non-custodial probationary sentence," because defendant's case did not involve "the unusual circumstances" that were the subject of 2014 Clarification, supra, at 1, 9. In any event, the prosecutor did invoke N.J.S.A. 2C:43-6.2 and give defendant the standard plea offer of a one-year period of parole ineligibility. Id. at 8-9. Thus, the prosecutor's plea offer would not have contravened the 2014 Clarification even if that memorandum had been applicable.

V.

Defendant argues that the prosecutor's recommendation was an abuse of his discretion under N.J.S.A. 2C:43-6.2. N.J.S.A. 2C:43-6.2 states

On a motion by the prosecutor made to the assignment judge that the imposition of a mandatory minimum term of imprisonment under [N.J.S.A. 2C:43-6(c)] for a defendant who has not previously been convicted of an offense under that subsection . . . does not serve the interests of justice, the assignment judge shall place the defendant on probation pursuant to [N.J.S.A. 2C:43-2(b)(2)] or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole.[7]

We find no abuse of discretion by the prosecutor in recommending that the trial court impose five years in prison with one year of parole ineligibility. Not only was "one year . . . during which the defendant will be ineligible for parole" an appropriate recommendation under N.J.S.A. 2C:43-6.2, but defendant agreed to it in the plea agreement. Trial counsel noted that "this has been a long and carefully negotiated resolution," and that defendant had "been quite clear and persistent with me that he wants to take advantage of" the prosecutor's discretionary offer of "the five, do one." "A sentence imposed pursuant to a plea agreement is presumed to be reasonable because a defendant voluntarily 'waived . . . his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" State v. Fuentes, 217 N.J. 57, 70-71 (2014) (citation omitted).

VI.

On appeal, defendant for the first time complains about a statement by the prosecutor at the plea colloquy. The prosecutor stated to defendant that "we're pleading this to the Graves Act alternative which only will allow for a 12 month parole ineligibility," and that "because you're taking this plea under this alternative you're only going to serve 12 months of parole eligibility [sic]" versus the longer mandatory minimum period of parole ineligibility under the Graves Act.8 Because defendant failed to object before the trial court, he must show that the prosecutor's statement was plain error. R. 2:10-2.

To the extent that the prosecutor's statement suggested that the trial court was bound by the prosecutor's recommendation to sentence defendant to one year of parole ineligibility, he was in error. Subsequent to defendant's sentencing, we ruled that N.J.S.A. 2C:43-6.2 "vests discretion with the sentencing judge to impose either a one-year minimum term of parole ineligibility or probation conditioned on a custodial term upon the motion for a waiver or after a prosecutor approved referral." State v. Nance, 442 N.J. Super. 268, 273 (App. Div. 2015).9 N.J.S.A. 2C:43-6.2 "does not expressly or implicitly limit the sentencing judge's ability to sentence a defendant to a lesser sentence provided for under the plea agreement." Id. at 274. "Therefore, to the extent the State argues the sentencing judge was specifically bound by the plea agreement's terms, we disagree." Id. at 273.

Defendant claims the prosecutor's statement led the trial court to a result it otherwise might not have reached. At the plea hearing, even before the prosecutor's statement, the trial court told defendant that "[b]y pleading guilty [to this Graves Act alternative sentence,] at the time of sentencing, you'll have to serve one [year] before you are eligible for parole." After the prosecutor's statement, the court told defendant "you'll be eligible for [parole] after 12 months of serving that five year sentence" and "you'll only have to serve 12 months and then you are eligible to be released." It is unclear whether the trial court was describing the recommended sentence or its own understanding of the limits of its sentencing authority.

At sentencing, the prosecutor properly "request[ed] the Court to sentence [defendant] in accordance with the Graves Act alternative plea of five, do one." The trial court ruled it was

going to sentence [defendant] in accordance with this plea agreement to five years New Jersey State Prison. He'll have to serve one year before he's eligible for parole and that is the minimum ineligibility period. If I had more leeway in this particular case, I would have exercised that discretion. Unfortunately, I don't have any leeway because of the nature of the offense and what's he's pled guilty to.

This statement suggests that the trial court believed it had no discretion to impose a lesser sentence.10 On the other hand, the trial court found "nothing in the record" to rebut the presumption of incarceration; found the State's recommendation of one year without parole "to be an appropriate sentence under all the circumstances" and to be "fair and in the interests of justice"; and determined after taking everything into consideration that defendant "should be sentenced in accordance with the plea agreement."

We do not believe that defendant has shown that the prosecutor's statement was "clearly capable of producing an unjust result." R. 2:10-2. Thus, we do not rule defendant has shown entitlement to a resentencing. Nonetheless, there is sufficient lack of clarity in the record to raise concern. Thus, we remand to the trial judge for a written clarification. See, e.g., State v. Mejia, 141 N.J. 475, 506 (1995), overruled on other grounds by State v. Cooper, 151 N.J. 326, 377 (1997).

The trial court should clarify whether it was aware of its discretion under N.J.S.A. 2C:43-6.2, as we recently ruled in Nance, to impose the one-year period of parole ineligibility, or probation conditioned upon a custodial term not exceeding 364 days, or probation without incarceration. If the trial court was aware that it had those sentencing options, and imposed the one-year period of parole ineligibility in its discretion, the court shall so state and the sentence it previously imposed shall stand. If the trial court was not aware that it had those sentencing options, and imposed the one-year period of parole ineligibility because it believed it had no discretion, the court shall vacate the sentence and schedule a resentencing, at which the court may resentence defendant to any of those sentencing options.

The trial court should issue this clarification within fifteen days of our decision. We do not retain jurisdiction.

Affirmed, and remanded for clarification.

1 Defendant's Pre-Sentence Report (PSR) indicates that on May 20, 2012, defendant was charged in Pennsylvania with nine counts, including eluding an officer, three counts of recklessly endangering other persons, and carrying a firearm without a license. Subsequently, he was convicted of flight to avoid apprehension, and three counts of disorderly conduct by engaging in fighting. He was sentenced in December 2012 to confinement for a maximum of twenty-three months, probation for a maximum of one year, and a $6935.20 fine.

2 Defendant's PSR relates that the stop occurred at 12:59 a.m., after an Evesham Township officer observed defendant commit multiple motor vehicle violations. Defendant acted extremely erratically and gave conflicting stories about from whence he was traveling. The officer determined using the National Crime Information Center (NCIC) that defendant was listed as a missing person, armed and dangerous, and in possible possession of a firearm, and that warrants had been issued for his arrest.

3 Defendant's PSR states that, after his arrest, a police inventory of the car discovered a duffel bag in the trunk containing a .38 caliber handgun, loaded with five hollow-point bullets.

4 We need not consider on this appeal whether defendant's appeal has the effect of rescinding the negotiated agreement. See id. at 294 n.6 (citing State v. Gibson, 68 N.J. 499, 511-12 (1975)). We note that defendant was not given the warnings found "salutary" in Gibson, supra, 68 N.J. at 513.

5 The 2014 Clarification is available at www.state.nj.us/oag/dcj/agguide/directives/Graves-Act-clarification-2014.pdf (Sept. 24, 2014).

6 Besides its general inapplicability here, "the 2014 Clarification instructs prosecutors to consider specified facts, several of which weigh against PTI here." Waters, supra, 439 N.J. Super. at 240. For example, "the firearm was loaded," and "defendant on his or her own initiative [never] advised a police officer that a firearm was present." 2014 Clarification, supra, at 6-7.

7 N.J.S.A. 2C:43-2(b)(2) provides that a court "may sentence" a defendant "to be placed on probation and, in the case of a person convicted of a crime, to imprisonment for a term fixed by the court not exceeding 364 days to be served as a condition of probation." Thus, "the court may place the defendant on probation without requiring incarceration, or it may condition probation by a term of incarceration up to 364 days in the county jail." State v. Baylass, 114 N.J. 169, 173 (1989) (citing N.J.S.A. 2C:43-2(b)(2)).

8 Defendant does not challenge the prosecutor's statement that the applicable Graves Act mandatory minimum was forty-two months. In fact, the mandatory minimum under N.J.S.A. 2C:43-6(c) was three years when defendant committed his crime on May 25, 2012, and was not increased to forty-two months until an amendment effective August 8, 2013, after defendant's crime. Waters, supra, 439 N.J. Super. at 221-22, 232.

9 We read Nance as stating that where N.J.S.A. 2C:43-6.2 has been invoked by the prosecutor, the court may impose the one-year minimum term of parole ineligibility, probation, or probation conditioned upon a custodial term "not exceeding 364 days," as permitted by N.J.S.A. 2C:43-2(b)(2).

10 The trial court found the aggravating and mitigating factors to be in equipoise.