STATE OF NEW JERSEY v. TERRELL L. WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2341-15T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

TERRELL L. WILLIAMS,

Defendant-Respondent.

____________________________________________

October 14, 2016

Argued September 20, 2016 Decided

Before Judges Messano and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 14-11-3514 and 15-05-1416.

Robin A. Hamett, Assistant Prosecutor, argued the cause for appellant (Mary Eva Colalillo, Camden County Prosecutor, attorney; Ms. Hamett, of counsel and on the brief).

Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Rockoff, of counsel and on the brief).

PER CURIAM

On May 26, 2015, defendant Terrell Williams, pled guilty to second-degree possession of a firearm, N.J.S.A. 2C:39-5(b), and third-degree possession of a knife for an unlawful purpose in a second, separate indictment. N.J.S.A. 2C:39-4(d). Pursuant to the plea bargain, the State agreed to dismiss the remaining counts of the indictments in their entirety. Prior to the entry of defendant's guilty plea, the State moved before the criminal presiding judge (the PJ) for a waiver of the mandatory minimum sentence of forty-two months' imprisonment compelled by the Graves Act for the firearms violation. See N.J.S.A. 2C:43-6(c).

N.J.S.A. 2C:43-6.2, the so-called Graves Act "escape valve," provides in pertinent part,

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)] . . . 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.

[Ibid. (emphasis added).]

The State's motion, made on a pre-printed form, gave the following reasons for imposition of the lesser mandatory minimum of one year of parole ineligibility: "Firearm recovered in defendant's house came to light after being used in self-defense. Defendant suffers from diabetes and is an amputee." The State indicated the required mandatory minimum under the Graves Act did "not serve the 'interest of justice[.]'" The "form" was signed by the assistant prosecutor, defense counsel and the PJ. Defendant entered his guilty pleas before a different judge.

Sentencing took place approximately seven months later over two separate days in January and February 2016. During the first hearing, the judge expressed concern regarding defendant's health and the prison system's ability to provide necessary medical treatment. Before the second hearing, defendant submitted a supplemental report from his doctor, detailing defendant's multiple, serious health conditions, a long list of medications defendant required and the need for extensive "wound care" occasioned by multiple amputations. The doctor urged that defendant be "put under house arrest instead of being incarcerated."1 The State, in turn, provided a report from the managing physician of the Department of Corrections, indicating that defendant's dialysis needs could be accommodated while incarcerated.

The judge found aggravating sentencing factors three, six and nine. See N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (a)(6) (defendant's prior record and the seriousness of the present crimes); and (a)(9) (the need to deter defendant and others). He also found mitigating factors seven, ten and eleven. See N.J.S.A. 2C:44-1(b)(7) (lack of prior criminal history or defendant has led a law-abiding life for a substantial period of time) (emphasis added); (b)(10) (defendant will likely respond to probation); and (b)(11) (imprisonment would entail a hardship to defendant and his dependents). Although he did not specifically find mitigating factor eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct resulted from circumstances unlikely to recur), the judge "[took] into account . . . the remorsefulness that [defendant] expressed."

The judge found the aggravating and mitigating factors were "in balance." However, citing State v. Evers, 175 N.J. 355 (2003), and State v. E.R., 273 N.J. Super. 262 (App. Div. 1994), the judge concluded that defendant's imprisonment would result in a serious injustice overriding the need for deterrence. Citing our decision in State v. Nance, 442 N.J. Super. 268, 273 (App. Div. 2015), certif. granted, 224 N.J. 124 (2016), the judge believed that there had to be "a custodial aspect to the sentence." On the Graves Act offense, the judge sentenced defendant to a five-year term of probation, conditioned upon three-hundred and sixty-four days of house arrest with electronic monitoring. The judge imposed a concurrent five-year probationary sentence with the same conditions on the second indictment.

After some discussion that left unresolved the issue of whether jail credits for each indictment should be "stacked," the judge awarded defendant twenty-seven days of credit on the Graves Act offense, and sixty-five separate days of credit on the second indictment. He also stayed the sentence at the State's request pending appeal.

Before us, the State argues that the judge abused his discretion by imposing a probationary sentence on the Graves Act offense because our decision in Nance was "legally unsound," the balancing of aggravating and mitigating factors found by the judge did not overcome the presumption of imprisonment for a second-degree offense, see N.J.S.A. 2C:44-1(d), and house arrest with electronic monitoring did not satisfy the Graves Act's "custodial requirement."

Defendant contends the State has no right to appeal the lawful sentence imposed by the judge, and the judge had the discretionary authority to impose probation, despite the PJ's approval of the State's escape valve motion indicating that the sentence would be three years' imprisonment with a one-year period of parole ineligibility. Alternatively, defendant contends that we should remand the matter for re-sentencing so the court may consider a probationary sentence conditioned upon time served. Having considered these arguments in light of the record and applicable legal standards, we remand for the reasons expressed below.

Initially, we reject the State's contention that Nance was wrongly decided. In Nance, supra, 442 N.J. Super. at 273, we held that the Graves Act escape valve does not limit the judge's ability to sentence a defendant to a lesser sentence than provided for by the plea bargain.2 If the State's motion is granted, the judge is free to impose any sentence permitted by N.J.S.A. 2C:43-6(c). The panel explained "the sentence options when a prosecutorial waiver is granted: 'a reduced mandatory minimum term of one year, or to place the defendant on probation with the condition of a jail term pursuant to N.J.S.A. 2C:43-2(b)(2).'" Ibid. (quoting State v. Watson, 346 N.J. Super. 521, 535 (App. Div. 2002), certif. denied, 176 N.J. 278 (2003)). We find the reasoning of Nance to be persuasive.

The State contends that separate and apart from N.J.S.A. 2C:43-6.2, imposition of a probationary sentence for a second-degree offense is only justified if the judge independently concludes that defendant overcame the presumption of imprisonment that follows conviction for a second-degree crime.3 In this regard, N.J.S.A. 2C:44-1(d) provides,

[t]he court shall deal with a person who has been convicted of a crime of the first or second degree by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.

In Evers, the Court gave "trial courts guideposts for determining the extraordinary or extremely unusual case where the human cost of imprisoning a defendant for the sake of deterrence constitutes a serious injustice." Evers, supra, 175 N.J. at 392.

In deciding whether the "character and condition" of a defendant meets the "serious injustice" standard, a trial court should determine whether there is clear and convincing evidence that there are relevant mitigating factors present to an extraordinary degree and, if so, whether cumulatively, they so greatly exceed any aggravating factors that imprisonment would constitute a serious injustice overriding the need for deterrence. We do not suggest that every mitigating factor will bear the same relevance and weight in assessing the character and condition of the defendant; it is the quality of the factor or factors and their uniqueness in the particular setting that matters.

[Id. at 393-94 (emphasis added).]

Here, the judge definitely gave careful consideration to the character and condition of defendant; however, he specifically found, and the judgment of conviction expressly states, that the aggravating and mitigating sentencing factors were balanced. The judge may have misspoken in this regard, because he explained why imprisonment of defendant presented a serious injustice that overrode the need for deterrence. Because we are remanding the matter for another reason, prudence requires us to use the occasion to provide the judge with an opportunity to explain his reasoning in a manner that comports with the Evers calculus.

Citing Nance, the judge believed that the sentence imposed must include some custodial aspect. We agree with the State that home detention with electronic monitoring does not meet the requirements of N.J.S.A. 2C:43-2(b)(2). See State v. Harris, 439 N.J. Super. 150, 160 (App. Div. 2015) (by way of analogy holding that a mandatory period of imprisonment for violating N.J.S.A. 2C:40-26(b) could not be served on home detention).

However, defendant appropriately argues that if a custodial aspect is required, the judge should be permitted to consider whether the time defendant already served was sufficient. We agree. Since the judge did not specifically decide whether jail credits earned on each indictment were to be aggregated, we remand so the judge may consider: 1) what amount of jail credits defendant is entitled to receive under State v. Hernandez, 208 N.J. 24 (2011); and 2) whether probation conditioned upon a term of imprisonment equal to time already served is an appropriate sentence under N.J.S.A. 2C:43-6.2 in this case.

Finally, defendant aptly directs our attention to the Attorney General's September 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." [hereinafter AG's Directive]. Contrary to the holding in Nance and precedent we relied upon there, the AG's Directive clearly authorizes prosecutors in appropriate cases to consent to a "non-custodial probationary sentence." AG's Directive, supra, at 1. Whether the State's position regarding the necessity of some custodial term is consistent with the AG's Directive, and whether the AG's Directive applies in this case, may be addressed on remand if raised by defendant.

In sum, we vacate the judgments of conviction and remand the matter to the trial court for reconsideration of the sentences imposed. We do not retain jurisdiction.

1 The supplier of defendant's prosthetics also detailed the continued problems defendant was experiencing with the most-recent amputation of his leg.

2 We also reject, without discussion, defendant's contention that the State may not appeal the sentence. It is axiomatic that the State may appeal from an illegal sentence, and the State contends that the sentence imposed here was illegal.

3 Nance was a decision issued in three consolidated appeals. 442 N.J. Super. at 270. We note that while Nance himself was convicted of a third-degree offense for which the presumption of imprisonment did not necessarily apply, the other two appellants were convicted of second-degree crimes. Id. at 270-71. Despite these distinctions, our colleagues did not address whether the judge's sentencing discretion under N.J.S.A. 2C:43-6(c) was limited as a result. This leads defense counsel in this case to argue that N.J.S.A. 2C:43-6.2 carves out an exception to the Criminal Code's comprehensive sentencing provisions. Finding no authority to accept defendant's position, we disagree.