Opinion
DOCKET NO. A-2211-11T1
02-01-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. REGINALD SCOTT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-10-3198.
Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Reginald Scott appeals the order of the Law Division dismissing his petition for post-conviction relief (PCR). We reverse and remand for resentencing.
I.
After pleading guilty in August 1997 to two counts of an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and other charges, Scott was sentenced on the first manslaughter count to a sixty-year term of imprisonment with a twenty-five year period of parole ineligibility. The judge determined that he was subject to sentencing pursuant to the Graves Act, N.J.S.A. 2C:43-6(c) and -7(c) and N.J.S.A. 2C:44-3(d), and found that three aggravating factors substantially outweighed the non-existent mitigating factors. Concurrent terms of imprisonment were imposed based on Scott's guilty plea to the second count of aggravated manslaughter, two counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). The remaining charges were dismissed pursuant to the plea agreement.
Scott filed an appeal in July 2000. Because the transcript of the sentencing proceedings was not available, we remanded to the trial court "for reconstruction of the sentencing hearing." In November 2001, the trial judge attempted to reconstruct the record, but acknowledged that the then attorneys for Scott and the State did not then have access to Scott's sentencing hearing files and were not in a position to help.
The appeal was then placed on a sentencing calendar. In February 2002, after hearing argument, we again remanded to the trial judge "to reconstruct the record of the imposition of sentence upon [Scott], such reconstructed record to include a statement of reasons by the trial [judge] for the maximum terms imposed." However, we did not retain jurisdiction.
In February 2002, the trial judge sent a second reconstruction to counsel and the Appellate Division. Although advised of the judge's reconstruction, Scott's then appellate attorney did not apply to have the appeal reinstated. Consequently, Scott never obtained direct appellate review of his sentence.
In May 2002, Scott filed a pro se petition for PCR. He claimed that he was improperly pressured into confessing because of intimidation and threats that his pregnant girlfriend would be charged. Scott also asserted that his trial attorney was ineffective. The trial judge dismissed the petition in October 2005. Scott appealed.
On that appeal, we vacated the dismissal and remanded for an evidentiary hearing. We specifically stated that Scott could seek to amend his petition to include a claim of ineffective assistance by his appellate counsel, based upon the failure to pursue the direct appeal. We expressly provided that the remand hearing should encompass that issue if the petition was amended. PCR counsel, however, never sought to amend the petition to raise the issue of appellate counsel.
The remand hearing was held in April and May 2007. The PCR judge determined that there was no basis for relief and dismissed the petition. Scott again appealed. We affirmed the judge's determination as to the issues raised in the initial PCR petition, but found that PCR counsel had been ineffective in failing to amend the petition to raise the issue related to appellate counsel. We remanded for a hearing on that issue.
In May 2011, a different PCR judge held the second remand hearing. He determined that PCR and appellate counsel were constitutionally ineffective with respect to the failure to pursue the sentencing appeal, but that Scott was not harmed because the overall sentence imposed was shorter than the plea agreement. The judge relied on our holding in State v. Soto, 385 N.J. Super. 247, 255 (App. Div.), certif. denied, 188 N.J. 491 (2006), that a defendant accepting a plea offer cannot subsequently argue that the base sentence is excessive. This appeal followed.
II.
On appeal, Scott argues that the PCR judge erred in determining that he was not prejudiced. His argument is based on his assertion that the sentencing judge relied on inapplicable aggravating factors, without which he should have received a shorter sentence. Although we express no opinion with respect to an appropriate sentence, we agree that he is entitled to be resentenced.
The maximum term under N.J.S.A. 2C:11-4(c) is thirty years. Because Scott's offenses involved the use of a firearm and he had a prior firearm conviction, he was subject to a mandatory extended term between thirty years and life under the Graves Act, N.J.S.A. 2C:43-6(c) and - 7(c), with a minimum period of parole ineligibility between twenty-five and thirty-years. The judge imposed a custodial sentence of sixty years, with a twenty-five-year period of parole ineligibility. The remaining sentences were concurrent.
According to the judgment of conviction, the trial judge based his sentence on three aggravating factors: "The circumstances of the offense in that 2 separate victims [were] killed. The seriousness of the harm inflicted in that the victim left behind family (at least one)[.] The need for deterring [Scott] and others from violating the law." N.J.S.A. 2C:44-1(a)(1) ("The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner"), (2) ("The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance"), and (9) ("The need for deterring the defendant and others from violating the law").
In his second reconstruction of the sentencing record, the trial judge explained his reasons with respect to the first two factors as follows:
The undersigned found the following aggravating factors to have existed:
He did not mention aggravating factor (9), the need to deter.1. Circumstances of the offenses. There was more than one victim, two serious crimes inflicted upon each victim, and separate acts of violence committed against each victim. These circumstances are all the more serious because, although there might have been ample reasons for imposing consecutive terms on [Scott], the [c]ourt did not do so. While consecutive terms might have been mathematically possible under the terms of the plea agreement, that agreement was a constraint upon the [c]ourt. These circumstances, in totality represent an aggravating factor weighing
heavily on the sentencing [c]ourt.
2. Seriousness of the harm inflicted, as reflected in the pre-sentence report, in that at least one of the homicide victims, Alvarez, left surviving both parents and three siblings, all strongly distressed by the loss of a loved one.
I could find no mitigating factors, so that the aggravating factors substantially and infinitely outweighed the mitigating, which is why I imposed the terms I did (maximum term of 60 years, with 25 years of parole ineligibility).
With respect to the finding of aggravating factor (1), the judge to some extent conflated the circumstances-of-the-offense aggravating factor with reasons for imposing consecutive sentences 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). Although the judge noted that he could have reached the same result by imposing consecutive terms, for reasons not explained he felt constrained by the plea agreement from doing so.
Nevertheless, we have held that, in the context of concurrent sentences, multiple deaths may be considered as an aggravating factor in sentencing. State v. Travers, 229 N.J. Super. 144, 154 (App. Div. 1988). Consequently, the trial judge did not err in finding aggravating factor (1).
The finding of aggravating factor (2) was based on harm to the family members of one of the victims. In State v. Lawless, 423 N.J. Super. 293, 304-05 (App. Div. 2011), leave to appeal granted, 209 N.J. 230 (2012), we held that harm to the family of a victim could not support a finding of that aggravating factor. As a result, we conclude that the judge erred in finding aggravating factor (2) on that basis.
Finally, the judge applied aggravating factor (9), the need for deterrence. Given the nature of the criminal activity involved in this case, as well as Scott's prior record, we are satisfied that the application of that factor was fully supported by the record.
Although we read Soto as precluding Scott from arguing that a sentence within the parameters of the plea agreement is per se excessive, he was still entitled to have the sentencing judge find and weigh appropriate aggravating and mitigating factors to arrive at a sentence within those parameters. Given the magnitude of the sentence at issue and our finding that the judge applied an inappropriate aggravating factor, we conclude that Scott was potentially prejudiced by his appellate counsel's failure to pursue the sentencing issue on appeal. On this record, we are unable to determine that the judge would have imposed the same sentence had he not relied in part on aggravating factor (2). Consequently, we reverse the PCR judge's order of dismissal. Because the most likely result of the sentencing appeal would have been a remand for resentencing, we remand to the Law Division for that purpose.
Reversed and remanded for resentencing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION