Opinion
DOCKET NO. A-5813-09T2
05-29-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEROME LANGHORN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Reisner.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-06-2397 and 04-11-3559.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant, Jerome Langhorn, was indicted pursuant to Indictment Number 04-06-2397 in June 2004 for attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and one count of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). In November 2004, he was indicted pursuant to Indictment Number 04-11-3559 for first-degree robbery, N.J.S.A. 2C:15-1, third-degree criminal restraint, N.J.S.A. 2C:13-2, second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.
On January 25, 2005, defendant pled guilty to the charges in Indictment Number 04-06-2397 of fourth-degree unlawful possession of a weapon (a knife) and second-degree aggravated assault. Additionally, he pled guilty to the amended charge in Indictment Number 04-11-3559 of second-degree robbery and to fourth-degree unlawful possession of a weapon (a knife). In connection with those pleas, the State offered to recommend a custodial sentence of ten years, subject to the eighty-five percent period of parole ineligibility established by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After a discussion on the record of defendant's sentencing exposure, his waiver of rights, and the questions set forth in the plea forms, defendant provided a factual basis for his pleas admitting, with respect to the later indictment, that on June 30, 2004, while in East Orange, he knowingly committed an act of robbery on a cab driver by threatening the victim with a knife and, with respect to the earlier indictment, that on April 2, 2004, during an altercation while in the victim's East Orange apartment, he stabbed Francis Wiggins with a knife.
At sentencing before Judge Giles, which occurred on March 30, 2005, defendant gave versions of the events that exculpated him, denying that he stabbed Wiggins and stating that he had fallen on the knife and denying that he robbed the cab driver and stating that the driver had refused to give him change to which he was entitled and then falsely claimed a robbery — a version of events that the robbery victim, who was present at sentencing, refuted. Defendant declined to have his pleas vacated as factually unsupported.
During the sentencing proceeding, the judge discussed with defendant his use of seven aliases. Additionally, the judge noted that defendant had utilized four dates of birth and six different social security numbers. According to the judge's review of defendant's prior criminal history, he had been arrested thirty-six times with forty-seven complaints filed against him. He had two conditional discharges, twenty-six dismissals, three no bills, eight municipal court convictions, four disorderly persons convictions, and one violation of probation. Additionally, according to the judge, he had one prior indictable conviction in the Commonwealth of Virginia. However, defendant claimed, without support, that at least some of the criminal prosecutions involved others who had used defendant's name.
Addressing defendant's sentence, the judge found aggravating factor three, defendant's risk of reoffense, based on the close proximity in time of the two crimes for which he was being sentenced. The judge also found aggravating factor nine, the need for deterrence. N.J.S.A. 2C:44-1a(3) and (9). In connection with the earlier indictment, the judge found mitigating factor six as the result of the requirement that defendant reimburse the Victims of Crime Compensation Board for the costs of his victim's medical treatment, and he additionally cited mitigating factor five, finding that defendant's victim may have induced or facilitated the commission of the crime. N.J.S.A. 2C:44-1b(5) and (6). After weighing those factors, the judge sentenced defendant for the weapons offense in Indictment No. 04-06-2397 to eighteen months, concurrent with an eight-year sentence subject to the parole ineligibility provisions of NERA for the second-degree aggravated assault. On Indictment No. 04-11-3559, the judge imposed concurrent sentences of eighteen months on the weapons offense and eight years subject to NERA for the robbery, each to run concurrently with the sentences on the other indictment. Thus the judge, as he had suggested he was willing to do at the time of defendant's pleas, sentenced him to two years less than the custodial term recommended by the prosecutor.
Defendant filed an appeal from his sentence that we heard on an excessive sentence, oral argument calendar. Following argument, on December 14, 2006, we entered an order remanding the matter for resentencing in light of State v. Natale, 184 N.J. 458 (2005) and State v. Thomas, 188 N.J. 137 (2006).
At the remand hearing before Judge Sivilli, defense counsel argued for lesser concurrent sentences of five years, subject to NERA, on each indictment, contending that defendant lacked any prior indictable convictions, and that the Virginia conviction appearing in his criminal history did not pertain to him. Further, counsel stressed defendant's participation in rehabilitative programs while in prison, for which he had received certificates that were shown to the judge, and counsel noted that defendant was forty-nine years of age, a father and grandfather, and disabled. Thereafter, the judge permitted defendant to give a lengthy and impassioned argument on his own behalf, during which he stressed his lack of a significant prior criminal history, the use of his name in criminal proceedings by others, his participation in prison programs, his lack of disciplinary charges while in prison, and his transformation into a law-abiding citizen, anxious to guide others into a lawful way of life. Additionally, defendant noted his significant disability and the need for orthopedic surgery that was not reliably available through the prison system. In response, the State argued that the sentence imposed by Judge Giles "was more than just, more than lenient, and more than reasonable and should not be disturbed." The State argued further that, because the proceeding constituted a resentencing under Natale, not a motion for reconsideration of sentence, defendant's good behavior in prison was not relevant.
Following a review of defendant's criminal history as set forth in his pre-sentence investigation report, his use of aliases, different dates of birth and different social security numbers, Judge Sivilli found the same aggravating and mitigating factors as had been found initially, and she imposed the same sentence. The sentencing transcript does not disclose any reliance by Judge Sivilli on the Virginia conviction that defendant contested.
Defendant appealed, but also filed for post-conviction relief (PCR), and as a result his appeal was dismissed. The PCR petition was heard by Judge Giles on January 13, 2010, and denied without a testimonial hearing. At argument, defense counsel again argued that the Virginia conviction had been wrongly included in defendant's criminal history, and defendant's claim was noted that trial counsel had failed to adequately argue applicable mitigating factors at the time that defendant was resentenced. The State argued in response that defendant had failed to set forth prima facie evidence of ineffective assistance of counsel under the two pronged standard established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), in that he had not presented evidence that counsel's performance fell below an objective standard of reasonableness and that there was a reasonable probability that, but for counsel's unprofessional errors, the result of the sentencing proceeding would have been different.
In a lengthy and thoughtful oral opinion, the judge denied PCR. He recognized that, at the resentencing hearing, defense counsel had addressed the inaccuracy of defendant's criminal history, insofar as it reflected a conviction for an indictable crime in Virginia. Additionally, the judge noted that both defense counsel and defendant offered evidence of defendant's rehabilitative activities in prison. Addressing the State's contention that defendant had failed to present prima facie evidence of ineffective assistance of counsel under the standards of Strickland and Fritz, the judge noted that, when initially sentencing defendant, and despite the severity of defendant's crimes, he gave defendant a sentence that was two years less than that recommended by the State, and that was substantially less than the sentence to which defendant would have been exposed if he had gone to trial. On resentencing, Judge Sivilli had declined to disturb defendant's initial sentence. Despite the fact that defendant's conduct in prison was not relevant to a Natale remand, counsel, at defendant's request, presented that evidence. Additionally, the judge noted that defense counsel had argued that defendant was a grandfather, that he had physical ailments, and that he walked with a cane. As a result, counsel then requested concurrent five-year sentences, thereby adequately addressing the mitigating factors and the post-sentencing rehabilitation that defendant wished the court to consider. Further, defendant was permitted to give a "rather thorough and passionate presentation" regarding the alleged inaccuracy of his record and his prison accomplishments. Thus, although the judge found that counsel had adequately argued the relevant mitigating factors, "even if he didn't, the court had the opportunity to listen to all of that" from defendant himself. Thus, defendant had not demonstrated that counsel had been ineffective under Strickland's standards.
Thereafter, the judge further addressed the Virginia conviction, determining "there has been no evidence placed before me as to whether that information . . . was accurate then or is accurate now." But, the judge concluded:
in spite of all that, the point is . . . that the petitioner, defendant, was sentenced to two years less than what is recommended by the State in conjunction with the aggravating and mitigating factors that I found to exist at that time, which were not disturbed by Judge Sivilli . . . . And for all those reasons, the petitioner's application on post-conviction relief will be denied.
On appeal, defendant claims that, pursuant to Thomas, supra, 188 N.J. at 152-54, counsel should have urged for a qualitative weighing of the aggravating factors in comparison to the mitigating factors in defendant's case, and that if that process had occurred, a sentence of less than eight years would have resulted, particularly in light of the absence of any prior felony convictions. We reject that argument. Our review of the initial sentencing transcript reveals that Judge Giles based his invocation of aggravating factor three on the temporal proximity of the two crimes to which he had pled, not on defendant's prior indictable conviction. Moreover, even if that conviction were weighed in the process of determining defendant's sentence, we have no proof that such a procedure would have been inappropriate, since we have no proof that the subject of the Virginia conviction was anyone other than defendant.
We thus affirm the denial of PCR, basing our decision substantially on the oral opinions of Judge Giles.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION