Opinion
DOCKET NO. A-1352-13T3
04-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALQUAN GORDON, a/k/a ALQUAN DWIGHT, a/k/a QUAN GORDAN, a/k/a QUAN GORDON, Defendant-Appellant.
Kelly Anderson Smith argued the cause for appellant. Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-11-4566. Kelly Anderson Smith argued the cause for appellant. Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Burroughs, of counsel and on the brief). PER CURIAM
Defendant Alquan Gordon appeals his sentence, claiming the court erred when it imposed a period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He also asserts the court erred by finding there were no mitigating factors. See N.J.S.A. 2C:44-1(b). We affirm.
Defendant is also known as Alquan Dwight.
I.
In 2001, defendant was indicted for first degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third degree unlawful possession of a firearm (handgun), N.J.S.A. 2C:39-5(b) (count three); and second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four).
Defendant was tried twice, both times in absentia. The first trial resulted in a hung jury and a mistrial was declared. After the second trial, defendant was convicted on all charges in the indictment. Defendant did not provide a transcript of the second trial, but as we found in an opinion previously issued in this case, the jury obviously gave credit to the following evidence. See State v. Dwight, 378 N.J. Super. 289, 291-92 (App. Div.), certif. denied, 185 N.J. 391 (2005).
On December 18, 2000, a fight erupted in a bar between W.C. and other patrons of the bar, including defendant. W.C. grabbed defendant by the shirt and someone struck defendant in the head with a beer bottle. Enraged, defendant demanded that W.C. reveal who hit him. W.C. said he did not know and defendant calmed down. Later, defendant, W.C., and others walked to defendant's sister's house. Defendant went inside to get a jacket but, when he returned, he pulled out a gun and shot W.C. in the neck. He then dragged W.C. down the street and left him in front of a different residence on the block. W.C. survived but was paralyzed from the chest down as a result of the gunshot wound to his spine.
W.C. is now deceased but, to protect his family's privacy, we refer to him by his initials.
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At defendant's sentencing on August 1, 2003, the aggravated assault and second degree weapons counts were merged with the attempted murder count, and he was sentenced to an extended term of fifty-five years, with a seventeen year period of parole ineligibility. A concurrent term of five years was imposed on the remaining weapons charge. We affirmed the conviction and sentence on direct appeal. Id. at 291, 297. The Supreme Court denied defendant's petition for certification. State v. Dwight, 185 N.J. 391 (2005).
On June 23, 2006, defendant filed a petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. During an evidentiary hearing, defendant testified that the State had offered a plea agreement of ten years imprisonment. When discussing the plea offer with his attorney, defendant asked if he would be subject to an extended term sentence if he went to trial and were convicted. His attorney advised him, incorrectly, that he would not be. Relying on that advice, defendant rejected the plea offer and went to trial. Defendant testified that he would have accepted the State's offer had his attorney given him the correct advice. At the PCR hearing, his attorney confirmed that he had misinformed defendant about his exposure to an extended term sentence. Notwithstanding the trial attorney's admission that he misadvised defendant, the PCR court denied defendant's petition.
On July 17, 2012, we reversed and remanded the matter for resentencing. State v. Gordon, No. A-2540-10 (App. Div. July 17, 2012) (slip op. at 19). We rejected the PCR court's factual findings, and further determined defendant had been advised at the pretrial conference that his sentencing exposure would not exceed thirty years if he went to trial. Id. at 16-19. Because of that understanding, defendant rejected the plea offer and went to trial. Id. at 19. In accordance with Lafler v. Cooper, ___ U.S. ___, , 132 S. Ct. 1376, 1389, 182 L. Ed. 2d 398, 412 (2012), we concluded the appropriate remedy was that defendant be resentenced within the terms of the plea negotiations and that his sentence not exceed the thirty years as explained to him at the time of the pretrial conference. State v. Gordon, supra, slip op. at 19.
On June 6, 2013, defendant was resentenced to a term of twenty years for attempted murder, subject to an eighty-five percent period of parole ineligibility under NERA, which included ten years under the Graves Act, see N.J.S.A. 2C:43-6(c). The convictions for second degree aggravated assault and second degree possession of a weapon for an unlawful purpose were merged with the count for attempted murder. Defendant also received a concurrent five-year term for the unlawful possession of a weapon.
II
Defendant raises the following points for our consideration:
POINT I - THE COURT IMPROPERLY IMPOSED THE NERA STATUTE ENHANCEMENT TO DEFENDANT'S 2000 ATTEMPTED MURDER CONVICTION
POINT II - THE COURT FAILED TO CONSIDER AND INCLUDE MITIGATING FACTORS AS PART OF DEFENDANT'S SENTENCING
As for his first point, defendant contends that NERA did not apply when he committed the offense of attempted murder on December 18, 2000. Defendant argues NERA was amended in 2001 to specifically identify those crimes that are subject to NERA, and one of those crimes was attempted murder. See L. 2001, c. 129. Defendant reasons that the amendment reveals that the Legislature did not intend to include attempted murder as an offense subject to NERA until the statute was amended in 2001. We disagree.
"A sentencing court applies 'the NERA provisions in effect on the date of the crime.'" State v. Amodio, 390 N.J. Super. 313, 333 (App. Div.), certif. denied, 192 N.J. 477 (2007) (quoting State v. Johnson, 376 N.J. Super. 163, 168 (App. Div.), certif. denied, 183 N.J. 592 (2005)). At the time of the attempted murder, NERA required that a court impose a parole ineligibility period of at least eighty-five percent of any sentence imposed for a first or second degree violent crime. N.J.S.A. 2C:43-7.2(a) (2000), amended by L. 2001, c. 129. In 2000, NERA defined violent crime as "any crime in which the actor causes death, causes serious bodily injury . . ., or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:43-7.2(d) (2000), amended by L. 2001, c. 129. The definition of a "deadly weapon" included "any firearm." Ibid. As defendant caused both a serious bodily injury and used a deadly weapon, he committed an offense for which the imposition of NERA was appropriate.
To be sure, when defendant committed the offense of attempted murder not all sentences for attempted murder were subject to NERA. A NERA term could not have been imposed unless the victim sustained serious bodily injury or the defendant used or threatened to use a deadly weapon. Here, however, there were two bases to impose a NERA term.
Further, when NERA was first introduced in 1996, the sponsors of the bill expressly stated that, among other offenses, attempted murder would be subject to the provisions of the act. See State v. Manzie, 335 N.J. Super. 267, 273-74 (App. Div. 2000), affirmed by an equally divided court, 168 N.J. 113 (2001). Thereafter, the bill was twice amended before it was passed in 1997. See L. 1997, c. 117, § 1; Manzie, supra, 335 N.J. Super. at 275.
The bill as originally introduced "applied to 'a crime of the first or second degree involving violence,' but did not define 'crime . . . involving violence.'" Ibid. (citations omitted). The bill was amended to add subsection d, which, in part, defined "violent crime" to mean death, serious bodily injury, or the use or threatened use of a deadly weapon. Ibid. Subsection d also included sexual assaults as violent crimes. Ibid. Thus, the amendments did not affect the sponsors' initial statements that NERA applied to attempted murder, although clearly the amendments did limit the application of NERA to those instances where a defendant caused the death or serious injury of the victim, or a deadly weapon was employed during the commission of the offense.
Because at the time defendant committed the attempted murder NERA applied to those victims of attempted murder who were seriously injured or the defendant had used a deadly weapon, the imposition of a NERA term was warranted. After carefully considering the record and the briefs, we conclude defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION