Opinion
DOCKET NO. A-4859-14T1
08-08-2019
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RASUL MCNEIL-THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the briefs). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Camila Andrea Garces, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Messano and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-06-1570. Joseph E. Krakora, Public Defender, attorney for appellant (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the briefs). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Camila Andrea Garces, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury convicted defendant Rasul McNeil-Thomas of first-degree carjacking; the lesser-included offense of first-degree aggravated manslaughter of Newark Police Officer William Johnson; two counts of first-degree attempted murder of M.T. and A.L.; second-degree aggravated assault (serious bodily injury) of J.S.; third-degree aggravated assault (bodily injury with a deadly weapon) of A.L.; fourth-degree aggravated assault (recklessly causing bodily injury with a deadly weapon) of T.J.; and related conspiracy and weapons offenses. On the carjacking and aggravated manslaughter convictions, the judge imposed consecutive thirty-year sentences, each with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. He imposed concurrent sentences on the remaining convictions.
We reversed defendant's convictions without addressing the sentencing arguments he raised. State v. McNeil-Thomas, No. A-4859-14 (App. Div. Dec. 28, 2017) (slip op. at 28-29). The Supreme Court reversed our judgment, reinstated the judgment of conviction, and remanded the matter to us "for consideration of defendant's sentencing arguments." State v. McNeil-Thomas, ___ N.J. ___, ___ (2019) (slip op. at 31). Defendant argues:
THE CASE SHOULD BE REMANDED TO THE TRIAL COURT FOR RESENTENCING BASED
UPON THE VIOLATION OF THE RULE SET FORTH IN STATE V. MILLER, 108 N.J. 112 (1987), AND THE COURT'S USE OF AN ELEMENT OF THE CRIME AS AN AGGRAVATED FACTOR. (NOT RAISED BELOW).The State concedes both points of the argument and agrees that we must remand the matter for resentencing.
In imposing the maximum thirty-year sentence for carjacking, the judge improperly double-counted an element of the offense by finding and applying aggravating factor thirteen, N.J.S.A. 2C:44-1(a)(13) (possession of a stolen motor vehicle in the course of committing the crime). In State v. Henry, we noted that the finding of this aggravating factor was "an improper 'double counting' since the stolen car . . . constituted an essential part of the hijacking offense and thus could not also represent an aggravating factor in sentencing for that offense." 323 N.J. Super. 157, 165 (App. Div. 1999).
Additionally, the State concedes, and we agree, that the judge offered no "explicit explanation of why defendant received the maximum sentence on the carjacking charge." In Miller, the Court said,
the factors invoked by the Legislature to establish the degree of the crime should not be double counted when calculating the length of sentence. Similarly, factors relied on to sentence a defendant to the maximum term for each offense should not be used again to justify imposing those sentences consecutively. Where the
offenses are closely related, it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively, especially where the second offense did not pose an additional risk to the victim. The focus should be on the fairness of the overall sentence, and the sentencing court should set forth in detail its reasons for concluding that a particular sentence is warranted.
[108 N.J. at 122 (emphasis added) (citing State v. Yarbough, 100 N.J. 627, 645 (1985)).]
The matter is remanded to the trial court, which "sh[all] resentence defendant as he appears on the day of resentencing." State v. Randolph, 210 N.J. 330, 354 (2012). The judge shall not apply aggravating factor thirteen in considering the appropriate sentence for the carjacking conviction. Moreover, the judge shall conduct "a new analysis of the aggravating and mitigating factors[,]" and, should he again impose "multiple consecutive maximum sentences," he must "fully explicate[] on the record" the "circumstances justifying such an extraordinary overall sentence." Ibid.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION