STATE OF NEW JERSEY v. HAROLD S. MAGBY

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-0628-16T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

HAROLD S. MAGBY,

     Defendant-Appellant.
__________________________

              Submitted January 10, 2018 — Decided February 1, 2018

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Indictment No.
              14-01-0139.

              David P. Schroth, attorney for appellant.

              Angelo J. Onofri, Mercer County Prosecutor,
              attorney  for   respondent  (Olivia  Mills,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Harold S. Magby appeals from the trial court's

sentence of three years imprisonment with three years of parole

ineligibility.        Defendant entered into a plea agreement with the

State, wherein defendant pled guilty to third-degree possession
of cocaine with intent to distribute it within a school zone,


N.J.S.A. 2C:35-7(a), 
N.J.S.A. 2C:35-5(a)(1). Defendant previously

pled guilty to the same crime nine years earlier.               The plea

agreement recommended a sentence of three years of imprisonment

with three years of parole ineligibility.       Defendant reserved the

right to argue for a lesser sentence at the sentencing hearing.

Because the court was not clear in its sentencing reasons, we

reverse and remand for another sentencing hearing.

      At sentencing, defendant argued that under 
N.J.S.A. 2C:35-

7(b), the court had discretion to deviate from the plea agreement's

recommended sentence and could waive or reduce defendant's parole

ineligibility or even place defendant on probation.             The State

argued that 
N.J.S.A. 2C:35-7(b) did not apply to defendant because

a   provision   of   that   statute   specifically   exempted   defendant

because he was subject to an extended term under 
N.J.S.A. 2C:43-

6(f).   On appeal the State modified its argument, abandoning its

original theory and arguing for the first time that defendant was

ineligible for sentencing pursuant to 2C:35-7(b) because a gun was

found in defendant's home.1

      Without analyzing 
N.J.S.A. 2C:35-7(b), or determining clearly

whether the statute applied to defendant, the court reviewed


1
  We do not address the propriety of the court's consideration of
facts not admitted by defendant at his guilty plea hearing. See
Alleyne v. United States, 
570 U.S. 99 (2013).
                                      2                          A-0628-16T2
aggravating and mitigating factors under 
N.J.S.A. 2C:44-1(a) and

(b) and determined that the aggravating factors outweighed the

mitigating factors. The court also noted that the plea agreement's

recommended sentence was fair under the circumstances and imposed

the sentence recommended by the State.

     The record reveals that, as a result of items found in

defendant's home, which was located within 1000 feet of a school,

defendant was charged in Indictment No. 14-01-0139-I with: third-

degree possession of cocaine, 
N.J.S.A. 2C:35-10(a)(1) (Count I);

second-degree possession of cocaine with intent to distribute,


N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2) (Count II); third-degree

possession of cocaine with intent to distribute on or near school

property, 
N.J.S.A. 2C:35-7(a), 
N.J.S.A. 2C:35-5(a)(1) and 
N.J.S.A.

2C:35-5(b)(2) (Count III); second-degree possession of a firearm

during the course of a drug offense, 
N.J.S.A. 2C:39-4.1(a) (Count

IV); and second-degree certain person not to possess a firearm,


N.J.S.A. 2C:39-7(b)(1) (Count V).

     Defendant   originally    pled    guilty   to    Count    IV   of    the

indictment,   second-degree   possession   of   a    firearm   during     the

course of a drug offense.     The original plea agreement called for

a maximum sentence of five years of incarceration with three and

a half years of parole ineligibility.




                                   3                                A-0628-16T2
     More than a year later, with consent from the State, defendant

asked the court to vacate the original guilty plea.         He then

entered into a new plea agreement, pleading guilty to Count III,

third-degree possession of cocaine with the intent to distribute

it on or near school property.     In exchange, the State agreed to

recommend a sentence of a three-year term of imprisonment with

three years of mandatory parole ineligibility.    In return for the

guilty plea, the State would not seek an extended term, although

an extended term would be required if sought by the State, 
N.J.S.A.

2C:43-6(f).

     Defendant argues on appeal:

          I.    THE TRIAL COURT ERRED IN SUGGESTING IT
                WAS BOUND BY THE TERMS OF THE NEGOTIATED
                PLEA   AGREEMENT   CALLING   FOR   PAROLE
                INELIGIBILITY   AND   MISUNDERSTOOD   THE
                TERMS OF THE AGREEMENT WARRANTING REMAND
                FOR RESENTENCING.

          II.   THE TRIAL COURT ERRED IN GIVING PRO FORMA
                "SLIGHT CREDIT" TO MITIGATING FACTOR
                NUMBER 11 AND EQUATING DEFENDANT'S
                HARDSHIP TO THAT OF "ANY DEFENDANT"
                LEAVING LOVED ONES BEHIND UPON BEING
                SENTENCED TO JAIL.

     A person who possesses illegal drugs with intent to distribute

violates 
N.J.S.A. 2C:35-5(a).      A person who violates 
N.J.S.A.

2C:35-5(a) while on any school property used for school purposes

or within 1000 feet of such school property is guilty of a third-

degree crime. 
N.J.S.A. 2C:35-7(a). A person who violates N.J.S.A.


                                 4                          A-0628-16T2
2C:35-7(a) "shall, except as provided in [
N.J.S.A.] 2C:35-12, be

sentenced by the court to a term of imprisonment."   Ibid.     "[T]he

term of imprisonment shall include the imposition of a minimum

term which shall be fixed at, or between, one-third and one-half

of the sentence imposed, or three years, whichever is greater,

during which the defendant shall be ineligible for parole."     Ibid.

     "Notwithstanding the provisions of [
N.J.S.A.] 2C:35-12 or

[N.J.S.A. 2C:35-7(a)], the court may waive or reduce the minimum

term of parole ineligibility required under [N.J.S.A. 2C:35-7(a)]

or place the defendant on probation pursuant to [
N.J.S.A. 2C:43-

2(b)(2)]."   
N.J.S.A. 2C:35-7(b)(1).   To make this determination,

the court must consider:

          (a)   the extent of the defendant’s prior
          criminal record and the seriousness of the
          offenses for which the defendant has been
          convicted;

          (b)   the specific location of the present
          offense in relation to the school property,
          including distance from the school and the
          reasonable likelihood of exposing children to
          drug-related activities at that location;

          (c) whether school was in session at the time
          of the offense; and

          (d) whether children were present at or in
          the immediate vicinity of the location when
          the offense took place.

          [Ibid.]




                                5                            A-0628-16T2
The sentencing court, however, "shall not waive or reduce the

minimum term of parole ineligibility or sentence the defendant to

probation if it finds that:"


            (a) the offense took place while on any school
            property used for school purposes which is
            owned by or leased to any elementary or
            secondary school or school board, or while on
            any school bus; or

            (b) the defendant in the course of committing
            the offense used or threatened violence or was
            in possession of a firearm.

            [N.J.S.A. 2C:35-7(b)(2).]

     At sentencing, the State argued that "the [c]ourt is bound

by the terms of the plea agreement," and could not reduce the

sentence.    The State argued that, because defendant could have

been subject to a mandatory extended term, the court did not have

the authority to waive or reduce the sentence under 
N.J.S.A. 2C:35-

7(b)(1).    Defendant argued that the court could waive or reduce

the minimum term of parole ineligibility under 
N.J.S.A. 2C:35-

7(b)(1). The court did not determine whether it had the discretion

under 
N.J.S.A. 2C:35-7(b)(1) to reduce defendant's sentence.

     The trial court made several findings regarding aggravating

factors pursuant to 
N.J.S.A. 2C:44-1(a).           The court found support

for aggravating factor number three, the risk of reoffending,


N.J.S.A. 2C:44-1(a)(3), was high because defendant was previously

convicted   of   the   same   crime.       The   court   found   support   for

                                       6                             A-0628-16T2
aggravating factor number six, the severity of defendant's prior

criminal record, 
N.J.S.A. 2C:44-1(a)(6), because defendant had a

prior juvenile adjudication and the prior adult conviction.           The

court also found support for aggravating factor number nine, the

need for deterrence, 
N.J.S.A. 2C:44-1(a)(9).

     The    trial   court   also   made   several   findings   regarding

mitigating factors pursuant to 
N.J.S.A. 2C:44-1(b).       The court did

not find support for mitigating factor number eight, defendant's

conduct was the result of circumstances unlikely to recur, 
N.J.S.A.

2C:44-1(b)(8), because defendant had previously pled guilty to the

same crime.

     The trial court, however, did find support for mitigating

factor number nine, defendant's character and attitude indicate

an unlikelihood of reoffending, 
N.J.S.A. 2C:44-1(b)(9), because

"recently he's turned his life around and I give great credit to

all the letters that the [c]ourt has received and reviewed."          The

court gave "slight credit" for mitigating factor number eleven,

incarceration would entail excessive hardship, 
N.J.S.A. 2C:44-

1(b)(11).     Lastly, the court found support for mitigating factor

twelve, cooperation with law enforcement, 
N.J.S.A. 2C:44-1(b)(12).

     The trial court stated it would emphasize aggravating factor

nine because of the "need to deter this defendant and others in

the community from selling controlled dangerous substances."          For


                                    7                           A-0628-16T2
that reason, the court found "that the aggravating factors outweigh

the mitigating factors."    Additionally, the trial court found that

the plea agreement was fair because the defendant "was facing

exposure much greater than the negotiated plea" and imposed a

sentence of three years of imprisonment with three years of parole

ineligibility.

     A trial court must state its reasons for the sentence imposed,

R. 3:21-4(g).    Failure to give complete, specific reasons can

result in a remand.     See State v. Martelli, 
201 N.J. Super. 378,

385 (App. Div. 1985).    "At the time of sentencing, the court must

'state reasons for imposing such sentence including . . . the

factual basis supporting a finding of particular aggravating or

mitigating factors affecting sentence.'"     State v. Fuentes, 
217 N.J. 57, 73 (2014) (alteration in original) (quoting Rule 3:21-

4(g)).   "Central to the success of [the sentencing] process is the

requirement that the judge articulate the reasons for imposing

sentence."   State v. Case, 
220 N.J. 49, 54 (2014).    Inconsistent

and unclear findings will require a remand, even though a remand

may not result in a lesser sentence than the one initially imposed.

State v. Sene, 
443 N.J. Super. 134, 144-45 (App. Div. 2015),

certif. denied, 
224 N.J. 282 (2016).       "We apply a deferential

standard of review to the sentencing court's determination, but

not to the interpretation of a law."     State v. Bolvito, 217 N.J.


                                  8                         A-0628-16T2
221, 228 (2014).   We must ensure that the trial court followed the

appropriate sentencing guidelines.    We must: 1) "require that an

exercise of discretion be based upon findings of fact that are

grounded in competent, reasonably credible evidence;" 2) "require

that the factfinder apply correct legal principles in exercising

its discretion;" and 3) modify sentences when the facts and law

show "such a clear error of judgment that it shocks the judicial

conscience."   State v. Roth, 
95 N.J. 334, 363-64 (1984).

     Here the court did not determine if defendant was eligible

for a lesser term under 
N.J.S.A. 2C:35-7(b)(1).    Defendant reads

the court's language that "he's not entitled to probation given

the negotiated plea and what he pled guilty to" to mean that the

court found defendant ineligible under 
N.J.S.A. 2C:35-7(b)(1).

The court also stated:

          I note [defense counsel] has urged the [c]ourt
          to find an exception.        However, I have
          reviewed [his] memorandum and [the assistant
          prosecutor's] and I find given all the factors
          I must consider, given the fact I just found
          the aggravating factors, I just found, which
          outweigh the mitigating factors, the [c]ourt
          finds that this defendant does not meet it
          within that exception.     That he was facing
          exposure much greater than the negotiated
          plea. So I feel that the prosecutor has taken
          in consideration in reaching this plea, all—
          and,    in    effect,     has    waived    the
          aggravating/mitigating factors already.      I
          find this is a fair sentence under all the
          circumstances and will impose that.



                                 9                          A-0628-16T2
Although it seems clear the court did not apply 
N.J.S.A. 2C:35-

7(b)(1), we cannot clearly discern why the court found defendant

to be ineligible.     We thus remand for resentencing.

     As the court will be finding aggravating and mitigating

circumstances anew, we also point out that the court's findings

that defendant's risk of reoffending is high, aggravating factor

three, as well as mitigating factor nine, an unlikelihood of

reoffending, appear inconsistent. Recognizing this inconsistency,

the court outlined the evidence in favor of each factor.                   At

sentencing, however, the court must make findings based on the

evidence.   Either the court, on balance, finds a likelihood of

recurrence or not.        A court may find aggravating and mitigating

factors   that   appear    internally   inconsistent,   so   long   as    the

findings are supported by a reasoned explanation and "grounded in

competent, credible evidence in the record."        Case, 
220 N.J.          at
 67 (holding that while aggravating factor three (risk defendant

will reoffend) "stood as counterpoise" to mitigating factor seven

(no prior record), the two factors could coexist in a case, so

long as they were based on the evidence); see also Fuentes, 
217 N.J. at 63 (explaining that "any determination that aggravating

factor nine and mitigating factor eight are applicable to the same

case should be specifically explained").        The court must resolve




                                   10                               A-0628-16T2
conflicting evidence to find, on balance, whether defendant is or

is not likely to reoffend.

    We   thus   reverse   and   remand   to   afford   the   parties   an

opportunity to present their sentencing arguments anew and the

court to make complete findings.       We do not retain jurisdiction.




                                  11                            A-0628-16T2