STATE OF NEW JERSEY v. JAHMIN DAMON MUSE

NOT FOR PUBLICATION WITHOUT THE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.

JAHMIN DAMON MUSE a/k/a JAMEEL

HAWKINS a/k/a JAY MUSER a/k/a

GERM MUSE a/k/a JAHMIR R. MUSE,

Defendant-Appellant.

ArguedJanuary 7, 2015 Decided May 27, 2015

Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0449.

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Hunter, of counsel and on the brief).

Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).

PER CURIAM

Defendant Jahmin Muse appeals from a sentence imposed on October 21, 2011. For the reasons that follow, we vacate the judgment and remand.

Tried by a jury, in 2006 defendant was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1),(b)(1) (counttwo); seconddegree possession of cocaine with intent to distribute in or within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count three); third-degree possession of heroin, N.J.S.A. 2C:3510(a)(1) (count four); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count five); second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:357.1 (count six); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count seven); and second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:357.1 (count eight). Defendant was sentenced as an extended-term offender, pursuant to N.J.S.A. 2C:44-3(a), to an aggregate term of life plus fifteen years, twenty-seven and a half of which would be served without parole. The matter was remanded for reconsideration of merger and for resentencing in accordance with State v. Pierce, 188 N.J. 155, 162 (2006). State v. Muse, No. A-3741-05 (App. Div. Feb. 26, 2007) (slip op. at 20-21).

On remand, the trial judge merged counts one and three into count two, counts four and five into count six, and count seven into count eight, but reimposed the original sentence. The matter was appealed on an excessive sentence oral argument calendar. R. 2:9-11. As a result, on February 22, 2010, the matter was again remanded for resentence because we were "satisfied that the sentence [was] manifestly excessive and unduly punitive and constitutes a mistaken exercise of discretion."

On October 21, 2011, defendant was sentenced a third time before a second judge, the trial judge having retired. The new sentence imposed was fifty years in prison with twenty-two years of parole ineligibility on count two. On counts six and eight, defendant received ten years subject to five years of parole ineligibility concurrent to the fifty years.

On appeal, the matter was again heard on an excessive sentence oral argument calendar. We transferred it to the plenary calendar because it was "not ready for disposition on oral argument without briefs," and was "postponed until a later date for disposition after full briefing on a regular calendar." This opinion addresses that transferred appeal from the third sentencing proceeding.

We have described in detail elsewhere the police encounter with defendant that resulted in these charges. State v. Muse, No. A-3741-05 (slip op. at 4-9). Essentially, defendant was observed by police officers while distributing drugs. That initial encounter resulted in the eventual discovery of substantial quantities of illegal drugs.

When first sentenced after trial, defendant was twenty-four years old. He had been adjudicated delinquent four times, including three adjudications for drug distribution, and, as an adult, had previously been convicted of drug distribution within 500 feet of public housing and unlawful possession of a weapon, drug possession, and fourth-degree contempt of a court order, N.J.S.A. 2C:29-9(b). Defendant had also been convicted on two occasions of disorderly persons offenses. Additional very serious drug charges were pending against him in a different matter, the "Fitzgerald" indictment.

The trial judge found that the statutory requirements for a persistent-offender extended sentence were met and that the record supported a finding of aggravating factors three, six, and nine. N.J.S.A. 2C:441(a)(3), (6) & (9). He found no mitigating factors. N.J.S.A. 2C:44-1(b). The trial judge on the resentence specifically mentioned the then-pending Fitzgerald case, to which he gave considerable weight in his sentencing analysis.

At defendant's third sentence, on October 21, 2011, the second judge stated that his conscience was not shocked by the trial judge's sentence, but he acknowledged that the remand called for a lesser sentence. He reviewed defendant's arrests and convictions in some detail, concluding that his prior criminal history clearly demonstrated he was a drug dealer. The judge also said that he was bound by the aggravating and mitigating factors found by the first judge.

The second judge observed that from the nature, quantity, and packaging of the controlled dangerous substances defendant possessed when arrested, "[t]here was the street[-]level sales and there was at least [] mid[-]level dealing." He mentioned the fact the State in writing confirmed that it was not pursuing the charges against defendant on the Fitzgerald indictment due to insufficient proofs.

The judge described defendant as a different man than he had been nine years earlier, and gave him "some consideration" for that. Ultimately, however, although agreeing that defendant was "entitled to a reduction, [since] the Appellate Division has said that the previous sentence was legally excessive and I must sentence below life plus [fifteen] with [twenty-seven] and a half," after appropriate mergers, he imposed a prison term of fifty years, subject to twenty-two years of parole ineligibility.

On appeal, defendant raises only the following point for our consideration

THE IMPOSITION OF A 50-YEAR EXTENDED TERM SENTENCE WITH 22 YEARS OF PAROLE INELIGIBILITY WAS THE RESULT OF INCORRECT LEGAL ANALYSIS. MOREOVER, IN THIS NON-VIOLENT, UNEXTRAORDINARY DRUG CASE, THIS SENTENCE WAS MANIFESTLY EXCESSIVE AND THIS COURT SHOULD EXERCISE ORIGINAL JURISDICTION AND REDUCE DEFENDANT'S SENTENCE. U.S. Const. Amend. VIII, XIV; N.J. Const. Art. I, 1, 12

We agree that defendant is entitled to yet another remand.

In State v. Randolph, 210 N.J. 330 (2012), our Supreme Court made clear that a defendant is to be resentenced based on his or her present circumstances, not just the circumstances at the time of the original proceeding. Id. at 351. Thus in the absence of a specific direction making a remand "limited in scope or [] designed to correct a technical error," the judge was entitled to take into account the whole man who stood before him at that time, not just the person defendant was when first sentenced in 2006.

We further note that the second judge was not bound by the first judge's findings of aggravating and mitigating factors, which should have been reassessed. See id. at 343. New findings of fact in support of aggravating and mitigating factors should have been made. See id. at 349, 354.

The judge who presided over defendant's trial believed the State intended to proceed on the Fitzgerald indictment, justifying his very lengthy sentence in part because of defendant's involvement in that case. If the State came to the conclusion that it lacked sufficient evidence to pursue the matter against defendant, that too is a circumstance that may be taken into account on resentence.

Accordingly, defendant's most recent sentence is vacated, as it was imposed based on an erroneous understanding of the sentencing calculus, in addition to being manifestly excessive, unduly punitive, and a mistaken exercise of discretion. State v. Natale, 184 N.J. 458 (2005); State v. O'Donnell, 117 N.J. 210 (1989); State v. Ghertler, 114 N.J. 383 (1989); State v. Roth, 95 N.J. 334 (1984).

Finally, we address defendant's request that we exercise original jurisdiction pursuant to Rule 2:10-5 and ourselves resentence him. If defendant's situation has continued to improve, that information is necessary for a meaningful review of the statutory aggravating and mitigating factors. Defendant may be better served by a remand in light of Randolph.

The sentence is vacated and the matter remanded for resentencing.