STATE OF NEW JERSEY v. DESHAWN M. WORTHEY

NOT FOR PUBLICATION WITHOUT THE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-2905-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DESHAWN M. WORTHEY,

     Defendant-Appellant.
__________________________

                    Submitted January 13, 2020 – Decided April 2, 2020

                    Before Judges Messano and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment No. 18-11-1907.

                    Law Offices of John J. Zarych, attorneys for appellant
                    (Brenden T. Shur, on the brief).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (John Joseph Santoliquido, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant, Deshawn M. Worthy, appeals from the sentence imposed on

his second-degree conviction for aggravated assault,  N.J.S.A. 2C:12-1(b)(1).

During a domestic altercation, defendant struck his girlfriend with sufficient

force to break her arm. He pled guilty to aggravated assault and was sentenced

in accordance with his plea agreement to a seven-year prison term, subject to

the No Early Release Act (NERA),  N.J.S.A. 2C:43-7.2.

      Defendant raises the following contention for our consideration:

            THE LOWER COURT ERRED IN FINDING
            AGGRAVATING       FACTOR  THREE   BASED
            SOLELY ON AGGRATING FACTOR SIX AS SUCH
            A FINDING IN [SIC] TANTAMOUNT TO DOUBLE
            COUNTING

      More specifically, defendant contends the trial court improperly

considered his criminal history by using his record of adult offenses and juvenile

adjudications of delinquency as the basis for finding both aggravating factor

three,  N.J.S.A. 2C:44-1(a)(3) (the risk defendant would commit another

offense), and aggravating factor six,  N.J.S.A. 2C:44-1(a)(6) (the extent of the

defendant's criminal history). He claims that the sentencing court essentially

used aggravating factor six as the basis for finding aggravating factor three and

thus impermissibly "double counted" his criminal record.




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      We reject that contention. We have reviewed the record in view of the

governing legal principles and conclude the sentencing court properly found and

weighed the applicable aggravating factors. We therefore affirm the sentence.

                                       I.

      We begin our analysis by acknowledging the standard of review that

governs this appeal. Sentencing determinations are entitled to deference. State

v. Fuentes,  217 N.J. 57, 70 (2014). Appellate courts are not to substitute their

judgment for the trial court's judgment simply because the appellate court would

have reached a different result. State v. Lawless,  214 N.J. 594, 606 (2013).

             The appellate court must affirm the sentence unless (1)
             the sentencing guidelines were violated; (2) the
             aggravating and mitigating factors found by the
             sentencing court were not based upon competent and
             credible evidence in the record; or (3) "the application
             of the guidelines to the facts of [the] case makes the
             sentence clearly unreasonable so as to shock the
             judicial conscience."

             [Fuentes,  217 N.J. at 70 (alteration in original) (quoting
             State v. Roth,  95 N.J. 334, 364–65 (1984)).]

Furthermore, "[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




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to sentence and the like.'" Id. at 70–71 (alteration in original) (quoting State v.

Davis,  175 N.J. Super. 130, 140 (App. Div. 1980)).

                                        II.

      In view of the narrow legal issue defendant raises on appeal, we focus our

attention on his criminal history and the role his prior offenses play ed in

determining his seven-year NERA sentence. The sentencing court found that

defendant had been arrested five times and had one Superior Court conviction

for aggravated assault. He also had a minor municipal court conviction. The

sentencing court noted that in addition to his adult record, as a juvenile,

defendant had been taken into custody on four occasions and was adjudicated

delinquent for aggravated assault and sexual assault.

      Defendant argues for the first time on appeal that the sentencing court

relied on his criminal history to support its finding of both aggravating factors

three and six, which according to defendant is "tantamount to double counting."

The prohibition against double counting generally arises when a court considers

an element of the offense as an aggravating factor. When the Legislature has

already accounted for the nature and circumstances of the offense conduct in

defining and grading the offense, a sentencing court may not consider those

same circumstances as an aggravating factor. See State v. Pineda,  119 N.J. 621,


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627 (1990) (citations omitted) (precluding a sentencing court from considering

as an aggravating factor the death of a victim when that fact is an element of the

crime).   See also State v. Yarbough,  100 N.J. 627, 633, 645–46 (1985)

(remanding for resentencing because the court used certain facts that the

Legislature used to establish the degree of the crime as aggravating factors).

      That general principle is inapposite in this case.       The gravamen of

defendant's argument is not that the sentencing court considered a circumstance

already accounted for by the Legislature. 1     Rather, defendant contends the

Legislature meant to preclude a sentencing court from using a single factual

circumstance to support more than one statutorily enumerated aggravating

factor. We disagree with defendant's interpretation of the New Jersey Code of

Criminal Justice.

      The aggravating factors set forth in  N.J.S.A. 2C:44-1(a) each address a

different aspect of the sentencing equation. Aggravating factor three is based

on a prediction of future conduct. It is axiomatic that a defendant's past conduct

is relevant to that prediction.     Indeed, absent a defendant's affirmative



1
   This is not a situation where a prior conviction was used both to support a
finding of an aggravating factor under  N.J.S.A. 2C:44-1(a) and to establish
eligibility for an extended term pursuant to  N.J.S.A. 2C:44-3(a) (persistent
offender) or  N.J.S.A. 2C:43-7.1 ("three strikes" law).
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declaration that he or she plans on committing future offenses, it is hard to

imagine a more reliable way to assess the risk a defendant will commit a future

offense than to extrapolate from his or her record of past offenses.

      Aggravating factor six addresses a different sentencing consideration.

This factor, along with the corresponding mitigating factor set forth in  N.J.S.A.

2C:44-1(b)(7), acknowledges the common-sense principle that defendants who

are not first offenders justly deserve greater punishment than defendants who

have led a law-abiding life. As a general matter, and putting other relevant

circumstances aside, defendants with an extensive history of serious past crimes

deserve greater punishment than defendants with less serious offense histories.

Furthermore, this aggravating factor, in contrast to aggravating factor three,

does not depend upon a prediction of future conduct. Rather, it allows for

greater punishment based solely on a defendant's past conduct, considering not

only the number of prior convictions and adjudications of delinquency b ut also

the severity of those crimes.

      The gist of defendant's contention on appeal is that the sentencing court

improperly relied upon the same set of facts—his criminal record—as the basis

for finding that these two distinct aggravating factors apply. Sentencing courts

are not precluded from relying on a single fact to establish two distinct


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aggravating factors so long as the court qualitatively weighs each factor and

does not merely add up the absolute number of factors that are found. It is well -

settled in this regard that under the sentencing framework of the New Jersey

Code of Criminal Justice, sentencing decisions are based on a qualitative rather

than quantitative analytical process. State v. L.V.,  410 N.J. Super. 90, 108 (App.

Div. 2009) (citing State v. Kruse,  105 N.J. 354, 363 (1987)). Indeed, it would

be inappropriate if a sentencing court were to find that the aggravating factors

substantially outweigh the mitigating factors solely because, for example, two

aggravating factors apply and only one mitigating factor applies. See State v.

Denmon,  347 N.J. Super. 457, 467–68 (App. Div. 2002) ("Our sentencing statute

contemplates a thoughtful weighing of the aggravating and mitigating factors,

not a mere counting of one against the other." (citing State v. Scher,  278 N.J.

Super. 249, 273 (App. Div. 1994))).

      Accordingly, we hold that a sentencing court may use a defendant's

criminal history to establish both aggravating factors three and six provi ded the

ultimate sentencing decision is based on a qualitative assessment of the value




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ascribed to these two aggravating factors and not just on the fact that two

aggravating factors were found rather than one. 2

      In this instance, the record clearly shows that the sentencing court ascribed

weight to each of the applicable aggravating factors.           Specifically, the

sentencing judge found with respect to aggravating factor three that, "[t]his

[criminal] history convinces the Court that defendant is likely to recidivate. The

Court weighs aggravating factor three as moderate." With respect to aggravating

factor six, the sentencing court found: "Aggravating factor six is present due to

the seriousness and extent of prior convictions and serious adjudications [of

delinquency] as enumerated previously. The Court gives this moderate weight."

The sentencing court likewise accorded "moderate" weight to aggravating factor

nine (the need to deter defendant and others). The court further found that no

mitigating factors apply and thus concluded that the aggravating factors

substantially outweighed the non-existent mitigating factors.

                                       III.

      In sum, the trial court considered the facts adduced during the plea

colloquy, the presentence investigation report, the impact statement provided by


2
   The sentencing court also found and ascribed weight to aggravating factor
nine,  N.J.S.A. 2C:44-1(a)(9) (the need to deter defendant and others from
violating the law).
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the victim, defendant's personal allocution, and the arguments of counsel before

finding aggravating factors three, six, and nine. The sentencing court made

findings with respect to the weight to ascribe to each of these aggravating

factors. The sentencing court properly exercised its discretion in finding that

these aggravating factors apply and in concluding, ultimately, their combined

effect substantially outweighs the mitigating factors. We thus conclude the

sentencing court acted well within its discretion when it imposed the maximum

sentence authorized by the plea agreement. See Fuentes,  217 N.J. at 70–71 ("A

sentence imposed pursuant to a plea agreement is presumed reasonable . . . .").

      To the extent we have not addressed them, any other arguments raised by

defendant lack sufficient merit to warrant discussion in this opinion. Rule 2:11-

3(e)(2).

      Affirmed.




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