Opinion
DOCKET NO. A-3336-13T3
06-20-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TIMOTHY A. ANDERSON, a/k/a JAMIL WHITE, Defendant-Appellant.
Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the brief). Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-01-0130. Rochelle Watson, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Watson, of counsel and on the brief). Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief). PER CURIAM
Defendant Timothy Anderson appeals from his conviction and sentence after trial by jury. Having reviewed defendant's arguments in light of the facts and applicable law, we affirm defendant's conviction, but remand for resentencing.
We derive the following facts from the trial record. On August 11, 2011, Cleatis Campbell drove to the Sand Pit Bar & Grill in Newark, New Jersey. Upon arrival, Campbell parked and locked his silver 2000 Mercedes CL-500. While walking toward the entrance of the Sand Pit, Campbell was approached from the side by an unknown individual who "snatched" Campbell's car keys from his hand and walked away. Campbell did not resist. Although not entirely clear from the record, Campbell contacted the Newark Police Department to report the silver Mercedes stolen.
On August 12, 2011, Detective Thomas Del Mauro of the Newark Police Department approached the intersection of 15th Avenue and 18th Street, where he witnessed a silver Mercedes at a red light. Aware of a recent report concerning the theft of a silver Mercedes, Del Mauro activated his lights and sirens, and pulled in front of the vehicle. The driver of the silver Mercedes, later identified as defendant, "immediately shifted" into reverse, and drove at a high rate of speed down the one-way southbound street in the northbound direction. As Del Mauro continued to pursue the vehicle, the silver Mercedes "lost control, went up on the sidewalk, [and] [struck] a traffic light." Defendant attempted to go westbound on 15th Avenue, but lost control of the vehicle, which went onto the curb on the opposite side the street, rendering the vehicle inoperable.
After the silver Mercedes came to a stop, both defendant and the passenger fled on foot. Del Mauro gave chase and was able to apprehend defendant. Del Mauro was unable to handcuff defendant due to a large brace on one of his arms. Upon inspection of the vehicle following defendant's apprehension, Del Mauro observed keys in the ignition. Defendant was placed under arrest. A short time thereafter, the passenger was arrested. Defendant and the passenger were transferred to the University Hospital in Newark for treatment.
On January 20, 2012, a grand jury indicted defendant on first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree eluding, N.J.S.A. 2C:29-2b (count two); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count seven). The trial commenced on July 25, 2012. Defendant was tried with his co-defendant, the passenger, over a three-day period. During the trial, the State moved, without objection, to amend count one of defendant's indictment from first-degree robbery to theft in the third-degree. The jury found defendant guilty on all counts, including the amended theft charge.
At the time of sentence, the State sought that defendant be sentenced to an extended term of imprisonment as a persistent offender pursuant to N.J.S.A. 2C:44-3a. Subsequent to hearing argument, the judge concluded that defendant was extended-term eligible. The judge found aggravating factors three, six and nine. The judge did not find any mitigating factors. After noting the extended sentence range as ten to twenty years, defendant was sentenced to a twelve-year term of imprisonment on count two, subject to six years of parole ineligibility pursuant to N.J.S.A. 2C:43-7b. On count three, which was merged with count one, defendant was sentenced to a four-year term of imprisonment to run concurrent to count two. On count seven, defendant was sentenced to an eighteen-month term of imprisonment concurrent to count two. Defendant was awarded 420 days of jail-time credit. Applicable fines and penalties were imposed.
On appeal, defendant raises the following arguments:
POINT I
THE JUDGE'S REJECTION OF VOIR DIRE QUESTIONS RELATED TO WHETHER THE JURORS COULD SEPARATELY EVALUATE THE PROOFS AGAINST THE CO[-]DEFENDANTS RENDERED THE JURY SELECTION PROCESS INADEQUATE AND DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
POINT II
COUNSEL WAS INEFFECTIVE IN CONCEDING DEFENDANT'S GUILT TO THEFT OF THE VICTIM'S CAR, WHICH SEVERELY UNDERMINED THE DEFENSE THEORY THAT DEFENDANT WAS NOT DRIVING THE CAR DURING THE ELUDING.
POINT III
BECAUSE THE TRIAL JUDGE MISAPPREHENDED THE SENTENCING RANGE FOR A DISCRETIONARY EXTENDED TERM AND PLACED UNDUE WEIGHT ON DEFENDANT'S PRIOR CRIMINAL RECORD, A RE[-]SENTENCING IS NECESSARY.
Defendant argues that the judge erred in rejecting the following two voir dire questions proposed by his counsel:
9. The prosecutor has chosen to proceed against these two or three defendants together. Can you examine the evidence against each individual defendant separately and keep the evidence separate in your deliberations?In support, defendant contends that by rejecting the proposed questions, the judge failed to ensure the selection of an impartial jury as "none of the [other] voir dire questions inquired into the juror's ability to give separate consideration of the case to each individual defendant." As such, defendant argues that he was denied a fair trial.
10. If the prosecutor convinces you beyond a reasonable doubt that one of the defendants is guilty, would it be easier for you to convict the second defendant?
In rejecting defendant's proposed question 9, the judge determined that the subject was "covered" by paragraph 14 in the final charge, which reads:
You must also return verdicts for each defendant for each of the charges tried. In other words, you have to decide each case individually. Whether the verdict for each defendant is the same depends on the evidence and your determination of the facts. There are four offenses charged in the indictment. There are separate offenses in separate counts in the indictment. In your determination whether the State has proven the defendant guilty of the crimes charged beyond a reasonable doubt[,] the defendant is entitled to have each count considered separately.
The judge rejected defendant's proposed question 10, holding that the question was "not probative, tends to be prejudicial and confuses the issue for the jury." The judge noted as further support for rejecting the proposed questions:
In the case sub judice, the rejected questions deal very specifically with attitudes about matters of law. Whether or not to inquire of prospective jurors about attitudes concerning their substantive defenses or other rules of law which may become implicated in a trial or in the charge is within the sound discretion of the trial court. . . .
In this case, the [c]ourt will properly exercise its discretion in limiting the voir dire to questions tending to expose jurors' biases and refuses to ask questions regarding matters of law. This is especially true since the [c]ourt will
explain to the jury that it must apply the law as set forth by the [c]ourt.
Rule 1:8-3(f) provides:
Conference Before Examination. Prior to the examination of the prospective jurors, the court shall hold a conference on the record to determine the areas of inquiry during voir dire. Attorneys shall submit proposed voir dire questions in writing in advance. If requested, the court shall determine whether the attorneys may participate in the questioning of the prospective jurors and, if so, to what extent. During the course of the questioning, additional questions of prospective jurors may be requested and asked as appropriate under the circumstances. The judge shall rule on the record on the proposed voir dire questions and on any requested attorney participation.
"Voir dire procedures and standards are traditionally within the broad discretionary powers vested in the trial court and its exercise of discretion will ordinarily not be disturbed on appeal." State v. Papasavvas, 163 N.J. 565, 595 (citation and internal quotation marks omitted), corrected by 164 N.J. 553 (2000). "The purpose of voir dire is to ensure an impartial jury by detecting jurors who cannot fairly decide a matter because of partiality or bias." State v. O'Brien, 377 N.J. Super. 389, 412 (App. Div. 2004) (citation and internal quotation marks omitted), aff'd in part, rev'd in part on other grounds, 183 N.J. 376 (2005). When the challenge is to the sufficiency of the voir dire, we have held:
[T]here is no particular litany required for the jury voir dire, and the court is not obligated to ask any particular question or indulge the defendant's requests absolutely. Appellate review is generally limited to determining whether the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury.See also Stater v. Winder, 200 N.J. 231, 252 (2009) ("[T]rial courts must be allotted reasonable latitude when conducting voir dire and, therefore, a reviewing court's examination should focus only on determining whether 'the overall scope and quality of the voir dire was sufficiently thorough and probing to assure the selection of an impartial jury.'") (quoting State v. Biegenwald, 106 N.J. 13, 29 (1987)).
[O'Brien, supra, 377 N.J. Super. at 412-13 (citations and internal quotation marks omitted).]
Here, we are unpersuaded that the judge's decision to reject the two proposed voir dire questions constituted an abuse of discretion. When considering the entire voir dire, we are satisfied the inquiry employed by the judge adequately assured fairness in this jury selection process and does not warrant the verdict be set aside. Velazquez v. Portadin, 321 N.J. Super. 558, 574 (App. Div. 1999), rev'd on other grounds, 163 N.J. 677 (2000).
Defendant next argues that his counsel provided ineffective assistance when he admitted defendant's theft of the car keys the day before the eluding. In support, defendant cites to the following opening remarks by counsel:
Now, the State has already indicated it's going to call Mr. Campbell. Mr. Campbell is going to come in, he's going to take the stand and he's going to testify that he was walking into the Sand Pit holding his keys, someone walks by and grabs the keys and this person turns and faces him. . . .
This is what the State wants you to believe. This is what they will submit is proof beyond a reasonable doubt that Mr. Anderson robbed Mr. Campbell. However, I will expose that Mr. Campbell was embarrassed, he was an embarrassed man. He's a regular person, he's a regular patron at the Sand Pit Bar & Grill. Comes in often, early morning. Comes in, takes a seat at the bar, lays his keys on the counter, has a drink or two and falls asleep.
Mr. Anderson takes those keys. Remember, honesty. He's not a perfect person, but he did not rob Mr. Campbell.
To prove ineffective assistance of counsel, a "defendant must show that counsel's performance was deficient" and that counsel's error so prejudiced the defendant that he or she was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 667, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Generally, we do not entertain ineffective assistance of counsel claims on direct appeal "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). The appropriate procedure for their resolution commonly is not direct appeal, but rather a post-conviction relief (PCR) application. Ibid. Here, defendant's claim of ineffective assistance concerns trial strategy decisions which lie outside the record. See State v. McDonald, 211 N.J. 4, 30 (2012). As such, we decline to address this claim on direct appeal.
Defendant also argues that the judge erred when sentencing him to an extended term pursuant to the persistent offender statute, N.J.S.A. 2C:44-3a. Specifically, defendant alleges that the judge "misapprehended the sentencing range for a persistent offender extended-term sentence." The State has conceded that the extended-term aspect of the sentence was in error. We agree.
Defendant further argues that the judge erred when he conducted the aggravating and mitigating factors analysis for sentencing, and when he imposed "a six-year discretionary parole disqualifier without any justification on the record." As we conclude the sentence was erroneous regarding the imposition of the extended-term sentence, we need not address these arguments. --------
We review a "trial court's 'sentencing determination under a deferential [abuse of discretion] standard of review.'" State v. Grate, 220 N.J. 317, 337 (2014) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)); see also State v. Pierce, 188 N.J. 155, 169-70 (2006). When reviewing a trial court's sentencing decision, this court may "not substitute its judgment for the judgment of the sentencing court." Lawless, supra, 214 N.J. at 606. We affirm a sentence if: (1) the trial court followed the sentencing guidelines; (2) its findings of fact and application of aggravating and mitigating factors were based on competent, credible evidence in the record; and (3) the application of the law to the facts does not shock the conscience. State v. Bolvito, 217 N.J. 221, 228 (2014).
In Pierce, supra, 188 N.J. at 169, our Supreme Court held that once a court determines that the statutory eligibility requirements have been satisfied for imposition of an extended term as a persistent offender, the defendant's sentencing range "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." As such, "the maximum sentence to which defendant may be subject . . . is the top of the extended-term range." Ibid.
Defendant does not argue that his prior convictions do not satisfy the statutory prerequisites for his qualification as a persistent offender under N.J.S.A. 2C:44-3(a). Rather, defendant argues that the judge erred when determining the extended sentencing range for the second-degree crime of eluding. Here, the judge erroneously determined that the sentencing range for the offense was "between [ten and twenty] years" pursuant to N.J.S.A. 2C:43-7a(3). Pursuant to N.J.S.A. 2C:43-6a(2), the ordinary sentencing range for a second-degree conviction is between "five and ten years." In accord with Pierce, supra, 188 N.J. at 169, however, the appropriate sentencing range for defendant's second-degree eluding offense was five to twenty years, as the sentencing range "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range."
Affirmed as to the conviction. Reversed and remanded for resentencing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION