STATE OF NEW JERSEY v. JAMES EARL JONES

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2159-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAMES EARL JONES,

     Defendant-Appellant.
_______________________

                   Submitted January 27, 2021 – Decided March 11, 2021

                   Before Judges Alvarez and Sumners.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 91-05-1163.

                   James Earl Jones, appellant pro se.

                   Jill S. Mayer, Acting Camden County Prosecutor,
                   attorney for respondent (Kevin J. Hein, Special Deputy
                   Attorney General/Acting Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant James Earl Jones appeals the Law Division order denying his

Rule 3:21-10(b) motion to correct an illegal sentence. We affirm substantially

for the reasons set forth in the trial judge's concise letter decision.

      On March 25, 1993, a jury found defendant guilty of the first-degree

murder of Hope Stauffer,  N.J.S.A. 2C:11-3(a)(1); first-degree felony murder,

 N.J.S.A. 2C:11-3(a)(3); first-degree kidnapping of Hope Stauffer,  N.J.S.A.

2C:13-1(b)(1) and (2); second-degree kidnapping of Stauffer's son,  N.J.S.A.

2C:13-1(b)(1) and -1(b)(2); conspiracy to commit first-degree robbery,  N.J.S.A.

2C:5-2; first-degree robbery,  N.J.S.A. 2C:15-1; second-degree possession of a

weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(a); third-degree unlawful

possession of a weapon,  N.J.S.A. 2C:39-5(a); and first-degree aggravated sexual

assault,  N.J.S.A. 2C:14-2(a)(3). (Da 11-13). Defendant was sentenced to an

aggregate life prison term plus sixty years subject to a sixty-year period of parole

ineligibility.1 His conviction and sentences were affirmed on direct appeal, State


1
  Specifically, defendant was sentenced to consecutive prison terms of: life with
a thirty-year parole disqualifier for first-degree murder; thirty years with a
fifteen-year parole disqualifier for first-degree kidnapping; ten years with a five-
year parole disqualifier for second-degree kidnapping; and twenty years with a
ten-year parole disqualifier for aggravated sexual assault. As for the remaining
counts, the judge imposed the following concurrent prison terms: twenty years
with a ten-year parole disqualifier for robbery and five years with a two-an-a-
half year parole disqualifier for unlawful possession of a weapon. State v.
Jones,  308 N.J. Super. 174, 178 (App. Div. 1998).
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                                          2
v. Jones,  308 N.J. Super. 174, 193 (App. Div. 1998), and our Supreme Court

denied defendant's petition for certification,  156 N.J. 380 (1998).

      For purposes of this opinion, we need not discuss defendant's heinous

crimes which are fully detailed in our reported decision. Jones,  308 N.J. Super.

at 180-83. Our focus is solely on the legal issue raised in defendant's single

point of contention that:

            THE TRIAL COURT ERRED IN [ITS] DECISION
            NOT    TO   VACATE   AND   RESENTENCE
            [DEFENDANT] WHERE HE WAS NOT ONLY
            INDICTED BY A GRAND JURY BUT FOUND
            GUILTY AND SENTENCED ON AN OFFENSE
            WHICH [DEFENDANT] SHOULD NOT HAVE HAD
            TO DEFEND DURING TRIAL IN VIOLATION OF
            HIS RIGHT TO DUE PROCESS OF LAW UNDER
            BOTH NEW JERSEY AND THE UNITED STATES
            CONSTITUTIONAL PROVISIONS.

There is no merit to this contention.

      Defendant asserts that his twenty-year prison sentence with a ten-year

parole disqualifier for the aggravated sexual assault sentence was illegal because

the offense must be against a third person and not the victim of sexual

penetration who was killed. However, as the State responds, this court pointed

out in his direct appeal "defendant concedes that a knowing sexual penetration

of another in the course of a homicide suffices to establish the offense." Id. at



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                                        3
186. It is therefore beyond reason for defendant to make a contrary argument in

his motion to declare his aggravated sexual assault sentence was illegal.

      The aggravated sexual assault statute undermines defendant's current

position.  N.J.S.A. 2C:14-2(a)(3) defines aggravated sexual assault as "an act of

sexual penetration with another person . . . committed during the commission

. . . of . . . [a] homicide." The judge's letter decision thus stated that aggravated

sexual assault "does not require that the homicide victim be a different person

than the victim of the act of sexual penetration." Because the jury found that

defendant sexually penetrated the victim, which this court affirmed in his direct

appeal, the judge correctly reasoned that the sentence imposed for aggravated

sexual assault was legal.

      We, moreover, agree with the State that defendant's reliance on State v

Rangel,  213 N.J. 500 (2013), is misplaced. There, our Supreme Court held the

defendant was correct that a person cannot be convicted of aggravated sexual

assault under  N.J.S.A. 2C:14-2(a)(3) if the predicate offense is aggravated

assault and the victim is the same person. Id. at 512-13. However, the predicate

offense here is not aggravated assault, as in Rangel, but homicide.            Since

defendant was found guilty of the predicate offence of homicide, he was

properly sentenced to aggravated sexual assault.


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      There is no reason to disturb the order denying defendant's motion to

correct an illegal sentence.

      Affirmed.




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