Opinion
DOCKET NO. A-1709-11T3
06-08-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIO C. BAEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nathan C. Howe, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-05-0387. Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nathan C. Howe, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury found defendant Julio C. Baez guilty of second-degree possession of a handgun without a permit, N.J.S.A. 2C:39- 5b. Finding that there was a "substantial likelihood that the defendant [was] involved in organized criminal activity," the judge sentenced him to prison for six years subject to a five-year minimum term pursuant to N.J.S.A. 2C:39-5i. Defendant appealed claiming the trial judge erred in denying his motion to suppress statements he made to the police, and that his sentence was excessive.
We rejected defendant's argument as to his sentence, but found we could not resolve one aspect of the claim that his statement should have been suppressed on the record before us. State v. Baez (I), No. A-1709-11 (App. Div. Feb. 22, 2013) (slip op. at 12-13). Accordingly, we remanded the matter to the trial judge, retaining jurisdiction only to allow defendant to appeal a determination that his statements to a police officer en route to headquarters had not affected the voluntariness of his subsequent confession. Ibid.
On remand, the trial judge again found defendant's confession was properly admitted. Defendant appealed, but in addition to appealing the specific ruling on remand, raised a new claim as to his sentence. State v. Baez (II), No. A-1709-11 (App. Div. June 12, 2014) (slip op. at 6). While this case was pending before the trial court on remand, the United States Supreme Court decided Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), holding the imposition of a mandatory minimum sentence based on a fact not submitted to the jury for determination beyond a reasonable doubt violates a defendant's Sixth Amendment right to a jury trial. Id. at ___, 133 S. Ct. at 2155, 186 L. Ed. 2d at 321. Defendant contended Alleyne required that we vacate his mandatory minimum term because the finding underpinning it was made by the judge and not the jury. Baez (II), supra, slip op. at 6-7. Reasoning that we had already affirmed defendant's sentence, we affirmed defendant's conviction and determined that our limited retention of jurisdiction did not allow us to consider defendant's new argument as to his sentence. Id. at 7-8.
The matter is back before us by virtue of the Supreme Court's January 20, 2015 order granting defendant's petition for certification regarding his sentence and summarily remanding to us for reconsideration in light of State v. Grate, 220 N.J. 317 (2015). State v. Baez, 220 N.J. 264 (2015). In light of Grate's holding that N.J.S.A. 2C:39-5i, under which defendant was sentenced to serve a mandatory minimum term of imprisonment, is unconstitutional, defendant's sentence is vacated. We remand to the trial court for resentencing in accordance with Grate. We do not retain jurisdiction.
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