Opinion
DOCKET NO. A-6191-11T1
03-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEREK J. MCDONOUGH, Defendant-Appellant.
Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the briefs). Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Anderson, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-447. Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas and Stephanie G. Forbes, on the briefs). Emily R. Anderson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Anderson, of counsel and on the brief). PER CURIAM
Defendant Derek McDonough was serving a five-year, non-custodial probationary sentence imposed for his conviction, following a guilty plea, for fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). under Middlesex County Indictment No. 05-04-447. While on probation, defendant was arrested, tried, and convicted under Union County Indictment No. 10-04-441 for the same offense and for third-degree witness tampering, N.J.S.A. 2C:28-5(a). Other charges in the Union County indictment resulted in an acquittal or a hung jury.
As a result of the Union County convictions, defendant was charged with violating the terms of his Middlesex County probation. During a June 21, 2012 violation of probation (VOP) hearing, the State relied solely on defendant's Union County conviction to prove his violating the conditions of his probation. Defendant argued any VOP determination was premature because the appeal from his Union County convictions was pending. The VOP judge rejected this argument, finding defendant's conviction was sufficient and if overturned on appeal, he could move to vacate the VOP.
The matter was calendared back-to-back with defendant's two appeals, which were consolidated, challenging his conviction and sentence under Union County Indictment No. 10-04-441. We addressed each argument presented by defendant in those appeals and affirmed his conviction and sentence. State v. Derek J. McDonough, Nos. A-4901-11 and A-0525-12 (App. Div. March 5, 2015).
Defendant next argued any sentence imposed on the Middlesex County VOP must run concurrently to the sentence he was serving for the Union County convictions. The VOP judge rejected this argument, noting defendant was on probation and committed a new, similar offense:
[Defendant] was placed on probation albeit some time ago for an '04 charge that was [] criminal sexual contact, fourth degree. The new offense for which he has been adjudicated guilty and I accept on appeal are two counts[:] Tampering with a witness . . . [and] criminal sexual contact . . . the same type of charge for which he's been on probation and in fact he was on probation at the time this incident occurred.The court imposed an eight-month sentence to be served consecutively to the sentence defendant was serving on the Union County charges. The judgment of conviction (JOC) recorded defendant's VOP sentence as eighteen months.
On appeal, defendant argues in a single point:
THE SENTENCING COURT ABUSED ITS DISCRETION IN ORDERING THE SENTENCE TO RUN CONSEC[U]TIVELY TO THE UNION COUNTY SENTENCE.We disagree the sentence should be reversed; although we agree the JOC must be corrected to reflect the sentence that was imposed.
Defendant initially requests a remand to correct the JOC to conform to the ordered sentence of eight months. Defendant also argues the VOP judge did not perform an analysis or evaluate those criteria to be considered when imposing a consecutive sentence. See 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).
The State did not file a cross-appeal, arguing only the imposition of a consecutive sentence was properly supported, but agreed the sentence imposed was eight months, necessitating amendment of the JOC. See State v. Vasquez, 374 N.J. Super. 252, 270 (App. Div. 2005) ("A trial court's oral opinion normally controls over an inconsistent judgment of conviction."). Following oral argument on the related appeals, however, the State moved for a limited remand to settle the record in this matter, asserting the transcript may have been in error and the imposed sentence may actually have been eighteen months.
Defendant's conviction for a fourth-degree offense made him eligible for a sentence of up to eighteen months in prison. N.J.S.A. 2C:43-6(a)(4). If a defendant violates a probationary sentence, N.J.S.A. 2C:45-3(b) permits the court to "impose on the defendant any sentence that might have been imposed originally for the offense of which he was convicted."
We reject the State's recently made remand request and deny the motion. We agree with defendant the JOC must be corrected on remand.
Next, we review whether the judge supported the ordered consecutive sentence. Although "trial judges have discretion to decide if sentences should run concurrently or consecutively," "[t]o channel that discretion and promote consistency in sentencing," State v. Miller, 205 N.J. 109, 128 (2011), the Supreme Court in Yarbough articulated the following standards to guide judges at sentencing:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places . . . ;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[Yarbough, supra, 100 N.J. at 643-44.]
The sixth criterion was superseded by the enactment of N.J.S.A. 2C:44-5(a), which provides that "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses."
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We have repeatedly advised trial judges of the need to scrupulously set forth their factual findings supporting all legal conclusions. See R. 1:7-4. "A clear and detailed statement of reasons is . . . a crucial component of the process conducted by the sentencing court, and a prerequisite to effective appellate review." State v. Fuentes, 217 N.J. 57, 74 (2014).
The VOP judge's cursory remarks do not fully adhere to a judge's factfinding obligation. Nevertheless, the limited comments are adequate to deduce the basis for imposition of the consecutive sentence. Miller, supra, 205 N.J. at 129-30. The failure to specifically identify he was applying Yarbough factors (1) and (3)(a) through (d), will not cause the sentence to be set aside.
Here, the limited findings that are made and the VOP judge's remarks during argument allow us to glean the rationale underpinning his determination to impose this VOP sentence consecutive to defendant's recently imposed sentence on his Union County convictions. The VOP judge acknowledged defendant's new conviction was for the same offense he had previously committed. He declined to order a concurrent sentence because the crimes were independent. They occurred at different times, in different counties, and involved separate and distinct victims. The consecutive sentence imposed assured defendant was punished for each unconnected offense, as there may not be any free crimes.
Defendant's sentence is affirmed; however, the matter is remanded for correction of the JOC to reflect the actual sentence imposed of eight months. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION