Opinion
DOCKET NO. A-2005-10T4
02-20-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT SHAVER, Defendant-Appellant.
Law Offices of Edward J. Crisonino, attorneys for appellant (Mr. Crisonino, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Richard E. McKelvey, Assistant County Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-09-2106.
Law Offices of Edward J. Crisonino, attorneys for appellant (Mr. Crisonino, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Richard E. McKelvey, Assistant County Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant entered guilty pleas pursuant to a plea agreement to: one count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); one count of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-degree robbery, N.J.S.A. 2C:15-1; and one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7. The State agreed to recommend an aggregate sentence of twenty-five years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and defendant received a sentence consistent with the plea agreement. He appeals from his conviction for aggravated manslaughter, arguing that the factual basis for his guilty plea was inadequate. Defendant also appeals from his sentence, arguing that it is excessive. We affirm.
As part of the plea agreement, defendant pled guilty to one count of a separate indictment, and two additional indictments were dismissed at sentencing.
Among the offenses to which defendant pled guilty are three robberies that occurred on August 11 and 14, 2006. Mildred Petrone, age 87, was the victim of the aggravated manslaughter and one of the second-degree robberies, committed on August 11, 2006. The victims of the other robberies, both committed on August 14, 2006, were Phyllis Cosulich, age 79, and Irene Ruzzo, age 65.
Defendant's factual basis for his guilty plea to aggravated manslaughter is set forth in the following colloquy with the court:
Unless otherwise indicated, all questions are posed by the court and all answers are those of defendant.
Q. Count two of indictment 06-09-2106 --
A. Is there any way I can get a copy of my plea form, the plea agreement, so I can go over it with you?
Q. Yes. Charges that on August 11th, 2006 in Absecon, that you committed aggravated manslaughter by causing the death of Mildred Petrone recklessly under circumstances manifesting extreme indifference to human life. Are you guilty of that offense, Mr. Shaver?
A. Yes.
Q. What did you do?
A. I got out of the car, I grabbed her purse with force and Mrs. Petrone fell to the ground, and after that I was unable to see what happened. I left.
Q. Okay. Do you -- do you believe that it was your use of force that caused her to fall to the ground?
A. Yes.
Q. And, Prosecutor, as a result, she suffered injur[i]es ultimately resulting in her death?
[PROSECUTOR] Yes, Judge. She suffered a cervical fracture, but I think that with regard to -- with regard to his
choice of victim, a woman whose birth date is 1918, who was 87 years old at the time, who was substantially smaller than Mr. Shaver and who was entirely taken by surprise by the attack, that with regard to that, the defendant, I believe, would have to acknowledge the likelihood, the probability that the injuries suffered by her would be serious bodily injury potentially resulting in death.
Q. Do you, Mr. Shaver?
A. That's a -- that's a question of law and fact, I believe.
[PROSECUTOR]: And I think --
A. I'm not done speaking. So I believe my intention was to grab the purse and once I did that, I did it, I grabbed it with force and she fell and death was a result of that incident, and I -- due to Mrs. Petrone's age and factor that that comes into play, I guess, I mean, you can't say death is foreseeable, and you can't say that --
Q. You can say --
A. -- my intention was to kill anybody, but it did happen, so I understand the statute, the charge if [sic] felony murder, that accidental killing or whatever can happen, but yes, I agree with what she says.
Q. Well, okay. In a manner of speaking, felony murder is easier to make out in these circumstances than reckless manslaughter, because all you have to have . . . had for the felony murder is the intention to rob with death as a consequence. Here the aggravated manslaughter requires that there be
some conscious disregard of the probability that death could occur as a result of your conduct, and so that is the question, would you agree that, based on all of the circumstances known to you, that you recklessly disregarded a risk that death could probably result?
A. Yeah, I guess so.
Defendant argues that the factual basis he provided to the court was inadequate because he did not acknowledge an extreme indifference to the value of human life. He contends that he only admitted to reckless conduct, which would provide a basis for reckless manslaughter, N.J.S.A. 2C:11-4(b)(1). We disagree.
We note that defendant has never sought to withdraw his guilty plea. It is not unreasonable to infer that he wishes to retain the benefits of a very favorable plea agreement, particularly in light of his statement in his pro se supplemental brief, "Defendant will except [sic] the maximum on a re-sentencing to Reckless Manslaughter if the Appellate Court finds the defendants [sic] claims to be a Miscarriage of Justice."
Aggravated manslaughter is committed when one "recklessly causes death under circumstances manifesting extreme indifference to human life." State v. Pelham, 176 N.J. 448, 460 (2003) (quoting N.J.S.A. 2C:11-4(a)). To be guilty of aggravated manslaughter, "the defendant must have caused death with an awareness and conscious disregard of the probability of death. If, instead, the defendant disregarded only a possibility of death, the result is reckless manslaughter." State v. Jenkins, 178 N.J. 347, 363 (2004) (internal quotation marks omitted).
Defendant was willing to plead guilty to this charge as part of a plea agreement that resulted in the dismissal of a significant number of charges, including felony murder. Initially, he admitted that he grabbed the victim's purse "with force," causing her to fall to the ground. However, upon inquiry from the court, the prosecutor noted that defendant had selected an eighty-seven-year-old victim who was substantially smaller than he and that defendant "would have to acknowledge the likelihood, the probability that the injuries suffered by her would be serious bodily injury potentially resulting in death." (Emphasis added). The court asked defendant if he did acknowledge this. Although he attempted to minimize his conduct by stating he did not intend to kill anybody and that death was not "foreseeable," he stated, "I agree with what she says." Apparently because defendant referred to felony murder, the court went further to explain the distinction between felony murder and aggravated manslaughter. The court explained that guilt of aggravated manslaughter "requires that there be some conscious disregard of the probability that death could occur as a result of your conduct[.]" The court pointedly asked defendant,
and so that is the question, would you agree that, based on all of the circumstances known to you, that you recklessly disregarded a risk that death could probably result?Defendant replied, "Yeah, I guess so."
[(Emphasis added).]
Because defendant entered a guilty plea to the aggravated manslaughter charge, this case is distinguishable from cases such as Jenkins, in which the evidence is evaluated to determine whether it supports an inference that a defendant disregarded only a possibility, rather than a probability of death. Here, defendant agreed under oath that he recklessly disregarded a risk that death could probably result from his conduct. We are satisfied that this admission provided a sufficient factual basis for a guilty plea to aggravated manslaughter.
Defendant argues that the sentence imposed on the aggravated manslaughter charge is excessive because it "shocks the conscience." These arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
In his pro se brief, defendant argues that his sentence for receiving stolen property should be vacated because he did not know that the automobile was stolen and because he was unaware of a mandatory $500 fine. These arguments lack any merit. The plea form executed by defendant plainly sets forth a maximum fine of $50,000. As part of the factual basis for his guilty plea, defendant stated, "to my knowledge, the car was stolen[.]"
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The court found aggravating factors (2) (gravity and seriousness of harm inflicted on the victim), (3) (risk that the defendant will commit another offense), (6) (extent of the defendant's prior criminal record and the seriousness of the offenses), (9) (need to deter defendant and others), (12) (offense against a person who he knew or should have known was 60 years of age or older, or disabled), and (13) (defendant used or was in possession of a stolen motor vehicle), N.J.S.A. 2C:44-1(a), and no mitigating factors. See N.J.S.A. 2C:44-1(b). Defendant argues that the trial court failed to explain the basis for finding these factors but does not dispute that any of these were unsupported by the record. He also complains that his trial counsel failed to argue that any mitigating factors applied but does not contend there were any mitigating factors that were supported by the evidence.
We review the sentence with deference and must affirm "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). Although it is true that the trial court did not dovetail its comments with its findings on the aggravating factors, it is "possible in the context of this record to extrapolate without great difficulty the court's reasoning." State v. Pillot, 115 N.J. 558, 566 (1989). The sentence imposed here does not shock the judicial conscience.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION