Opinion
DOCKET NO. A-1159-13T1
02-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CALVIN GLOVER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak and Jane C. Schuster, Deputy Attorneys General, of counsel; Ms. Kmieciak, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-12-01865. Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak and Jane C. Schuster, Deputy Attorneys General, of counsel; Ms. Kmieciak, on the brief). PER CURIAM
Defendant Calvin Glover appeals from an amended judgment of conviction (JOC) entered on September 5, 2013, sentencing him to three years in prison, with 344 days of jail credit, for a violation of probation (VOP) on Indictment No. A-1932-11, and a June 14, 2013 JOC, sentencing him to a discretionary extended term of seventy-eight months, with 262 days of jail credit, under Indictment No. S-1865-12. The sentences were consecutive, but neither involved any period of parole ineligibility. Defendant's brief advises us that he was admitted to the Intensive Supervision Program (ISP) in May 2014. Defendant's appeal is limited to the sentences imposed. We affirm.
The original JOC was dated June 14, 2013, but the JOC was later amended to award more jail credits.
We briefly set forth the relevant history. On March 30, 2012, defendant was placed on one year of probation for committing a third-degree burglary, N.J.S.A. 2C:18-2. He failed to report to his probation officer in July 2012 but was continued on probation. On September 26, 2012, defendant was arrested for committing another burglary. This burglary involved stealing items from a car in the parking lot of the Bergen County Courthouse. Notably, defendant was arrested for committing this burglary four days after being released from the county jail on another charge. A jury convicted him of the September burglary. On the day he was sentenced for that conviction, defendant also pled guilty to a violation of probation related to the prior burglary and was sentenced for the VOP.
It is unclear from the record whether defendant was in jail on a violation of probation from the prior burglary or for failing to pay fines related to a different offense. --------
At the sentencing hearing, the judge clearly acknowledged that under State v. Pierce, 188 N.J. 155 (2006), he would consider "the full range of sentence available, which starts at three [years]" and goes up to "the top of the enhanced range, which in this case is [ten] years." The judge found that defendant's two prior burglary convictions made him extended term eligible. See N.J.S.A. 2C:44-3(a). In determining what sentence to impose within the extended range of three to ten years, the judge considered defendant's multiple additional indictable convictions and multiple municipal court convictions, as bearing on aggravating factor six (defendant's prior criminal history) and factor three (risk of re-offense). The judge found a high probability that defendant would commit another offense. The judge also found aggravating factor nine, a "strong need" for deterrence, placing "great weight" on "the fact that this defendant after only four days of being out of prison decided to commit this offense."
The judge found mitigating factor one, that defendant did not cause serious harm, but considered and rejected factor two (that defendant did not contemplate serious harm) and factor eleven (imprisonment would be a serious hardship). The judge concluded that the aggravating factors substantially outweighed the mitigating factors, "and there is a strong and significant need to protect the public." However, the judge declined to impose a discretionary period of parole ineligibility and imposed a sentence of six and one-half years. In choosing that sentence, the judge extended defendant some leniency in light of the non-violent nature of his recent criminal history.
The judge then thoroughly analyzed the appropriate factors under State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Among other things, the judge considered that the two burglaries were separate and independent crimes with different objectives, and were committed at different times and places. The judge considered that the crimes were committed against separate victims. He also considered the real time consequences of imposing consecutive sentences. The judge specifically indicated that he was not double counting any aggravating factors previously considered, in deciding to sentence consecutively.
On this appeal defendant presents the following point of argument for our consideration:
A REMAND FOR RESENTENCING IS REQUIRED BECAUSE 1) THE COURT APPLIED AN
UNCONSTITUTIONAL PROCEDURE IN IMPOSING AN EXTENDED TERM, AND 2) THE COURT ENGAGED IN IMPERMISSIBLE DOUBLE-COUNTING AND IMPOSED AN EXCESSIVE SENTENCE.
We find no merit in those contentions and, except as addressed below, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's appeal focuses on the extended term sentence and on the imposition of a consecutive sentence. Our review of the judge's sentencing decision is limited and deferential. See State v. Grate, 220 N.J. 317, 337 (2015). There is no dispute that defendant was eligible for a discretionary extended term based on his prior convictions. N.J.S.A. 2C:44-3(a). However, defendant argues that in deciding on the length of the term, the judge failed to follow the process set forth in Pierce, by allegedly calculating the sentence starting at the bottom of the extended range instead of the bottom of the ordinary range. See Pierce, supra, 188 N.J. at 169. We disagree. The judge clearly considered the appropriate sentencing range, from three to ten years, and cogently explained his reasons for the sentence he imposed within that range, including the need to protect the public and the other applicable aggravating factors. We find no abuse of discretion. Id. at 169-70.
Defendant's reliance on State v. Sutton, 132 N.J. 471 (1993), is misplaced. Unlike Sutton, the trial judge here correctly applied the Yarbough factors in deciding whether to impose consecutive sentences. See id. at 485. The judge did not double count factors, nor did he consider the fact of the probation violation in deciding to impose a consecutive term. The judge appropriately considered the fact that defendant committed a new and separate crime, against a different victim. See Yarbough, supra, 100 N.J. at 643-44.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION