Opinion
DOCKET NO. A-1264-14T2
03-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN WARGO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 13-02-0087. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the briefs). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant John Wargo appeals from his conviction for third-degree burglary, N.J.S.A. 2C:18-2, and the disorderly persons offenses of criminal mischief, N.J.S.A. 2C:17-3(a), and theft by unlawful taking, N.J.S.A. 2C:20-3(a). His challenge to the judgment of conviction primarily focuses on a November 13, 2013 order entered after a Miranda hearing. Defendant also appeals from the aggregate extended-term sentence of seven years in prison. In his pro se brief defendant raises additional issues concerning the trial court's evidentiary rulings and the jury charge.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant presents the following points of argument for our consideration:
I. THIS COURT SHOULD SUPPRESS DEFENDANT'S STATEMENTS WHICH HE MADE IN A CUSTODIAL INTERROGATION WITHOUT A KNOWING WAIVER OF HIS RIGHT AGAINST SELF-INCRIMINATION.
A. Defendant's First Three Statements Were Without Miranda Warnings And Resulted From A Custodial Interrogation.
B. Defendant's Fourth Statement Must Be Suppressed As A Continuation Of The Prior, Unwarned Interrogation.
II. THE TRIAL COURT IMPOSED AN EXCESSIVE SEVEN YEAR SENTENCE WITH TWO AND A HALF YEARS PAROLE INELIGIBILITY WITHOUT CONSIDERING THE NATURE OF THE OFFENSES, STATING THE REASONS FOR THE AGGRAVATING FACTORS, JUSTIFYING PAROLE INELIGIBILITY, OR CONSIDERING MITIGATING FACTORS ON THE RECORD.
Defendant's pro se supplemental brief raises these issues:A. THE TRIAL COURT FAILED TO FOCUS ON DEFENDANT'S OFFENSE AND FAILED TO PLACE REASONS ON THE RECORD FOR FINDING AGGRAVATING FACTORS.
B. THE TRIAL JUDGE FAILED TO EXPLAIN WHY HE IMPOSED A SENTENCE GREATER THAN THE MIDPOINT OF THE RANGE.
C. THE TRIAL COURT FAILED TO JUSTIFY THE PAROLE DISQUALIFICATION THAT IT IMPOSED ON DEFENDANT.
D. THE TRIAL COURT IGNORED MITIGATING FACTORS FULLY SUPPORTED IN THE RECORD.
I. THE LOWER COURT ERRED BY ITS FAILURE TO ADMIT MR. WARGO'S DRAWING OF THE TRUCK INTO EVIDENCE, AND THIS WAS A CLEAR MISCARRIAGE OF JUSTICE.
II. THE LOWER COURT ERRED BY BARRING FROM THE JURY EVIDENCE OF "E.P.A. CLEAN UP" SIGN.
III. THE LOWER COURT ERRED BY ITS FAILURE TO CHARGE "MISTAKE OF FACTS PURSUANT TO N.J.S.A. 2CD:2-4[SIC].
IV. THE STATE FAILED TO PROOF [SIC] DOOR WAS SHUT. IF THE STATE CANNOT PROVE WAS SHUT, DOES NOT CONSTITUTE BURGLARY.
V. IN THE STATE'S HASTE TO CONVICT THE DEFENDANT, [IT] OVERLOOKED WHAT CONSTITUTES A FAIR TRIAL.
Having reviewed the record in light of the applicable law, we affirm defendant's conviction and the sentence.
I
We begin by addressing the Miranda hearing. Defendant was accused of unlawfully entering a disused warehouse on Sunnymeade Road in Hillsborough and stealing some copper pipe. The State's case rested in large part on an incriminating statement defendant made before being given Miranda warnings, and on his subsequent confession after being read and waiving his Miranda rights.
We briefly summarize the relevant hearing testimony of the arresting officer. Patrolman Scholz testified that the police dispatcher alerted him to a citizen's report of a suspicious person, who was seen riding a bicycle in the vicinity of the warehouse and who had a length of wire hanging around his neck. About a mile from the warehouse Scholz spotted an individual, later identified as defendant, who matched that description. He stopped defendant, and observed that he not only had the wire around his neck but had a backpack full of copper tubing. When Scholz consulted his onboard mobile data terminal and discovered that defendant had an outstanding arrest warrant, he handcuffed defendant and placed him in the back of his patrol car. As the motion judge correctly concluded, at that point defendant was in custody. See State v. Hubbard, 222 N.J. 249, 265-67 (2015).
While defendant was sitting in the patrol car, Scholz told him that he was investigating a report of a suspicious person leaving a warehouse on Sunnymeade Road. Defendant responded to Scholz's inquiry about where he obtained the wire and the copper in his backpack by stating that he found the wire in a creek and found the tubing lying on the ground behind the warehouse. The judge held that those responses were the product of custodial interrogation made without Miranda warnings and suppressed them. The State does not cross-appeal from that ruling.
After hearing defendant's explanation, Scholz then radioed to another police unit and asked that unit to "go over to the warehouse that's located [on] Sunnymeade Road, located next to the tracks and to check to see if there was any type of damage or break in to that building." After learning that another officer was going over to check the building, defendant stated to Scholz that "he did not break into the building but he did enter the building through a rear door and take the pipe from inside." The motion judge found that defendant's statement was "a spontaneous remark from the back seat [of the patrol car] after he heard that the officer had sent someone to check the building out. That was not the product of any interrogation at all. It was spontaneous." She therefore concluded that the statement was admissible. We conclude that the judge's factual finding on this issue is supported by legally competent evidence. See State v. Watts, 223 N.J. 503, 516 (2015). And, based on the facts as the judge found them to be, her legal conclusion is correct. See Rhode Island v. Innis, 446 U.S. 291, 300, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 307 (1980); State v. Brabham, 413 N.J. Super. 196, 210 (App. Div), certif. denied, 203 N.J. 440 (2010).
Scholz then brought defendant to the warehouse, where other officers investigated and determined that the premises had been vandalized and piping had been ripped from the wall. At that point, Scholz placed defendant under arrest for burglary and administered Miranda warnings. Once defendant arrived at headquarters, the police administered Miranda warnings a second time, after which defendant waived his applicable constitutional rights and made a statement admitting that he entered the warehouse through an open door, albeit without permission, and took the copper piping. After listening to the audiotape of that statement, the motion judge found that "defendant knowingly, freely and voluntarily" waived his Miranda rights and the statement was admissible. Again, we agree.
We find no merit in defendant's argument that the confession at the police statement was the product of defendant's prior inadmissible initial statement which the judge had suppressed. See State v. O'Neill, 193 N.J. 148, 179-80 (2007). The initial statement was entirely exculpatory and, unlike the defendant's statement in O'Neill, did not commit defendant to an incriminating story. Id. at 169-70. If anything, defendant's confession might have been influenced by his second statement, in which he spontaneously admitted taking the copper pipe from the warehouse. However, that statement was not taken in violation of his Miranda rights, and was admissible. Consequently, we find no merit in defendant's argument that the confession was a product of improper "question-first, warn-later" conduct by the police. See O'Neill, supra, 193 N.J. at 154-55.
For the first time on appeal, defendant argues that he made a "third statement" which should have been suppressed. According to Scholz's hearing testimony, as he was arriving at the warehouse with defendant in the back of his patrol car, he asked defendant "if this was the warehouse . . . that he entered. He said yes." Our review of the hearing transcript reveals that defendant did not ask the trial court to suppress that statement at the N.J.R.E. 104 hearing. However, defendant now claims that his response to the question was yet another incriminating statement elicited without Miranda warnings, and the judge should have sua sponte suppressed it.
We conclude that defendant waived the argument by failing to raise it at the Miranda hearing. See State v. Robinson, 200 N.J. 1, 19 (2009). Moreover, that statement was not introduced at the trial. Instead, Scholz gave a more limited and less incriminating characterization of defendant's statement, indicating that he asked defendant to point out the warehouse but not stating that he asked defendant to point out the warehouse that he had entered. Finally, the location of the warehouse was not genuinely in issue. In his post-Miranda confession and in his trial testimony, defendant identified the location of the warehouse, and admitted that he entered it. Consequently, even if the trial judge erred in not sua sponte suppressing that statement, any error would be harmless. R. 2:10-2; State v. Macon, 57 N.J. 325, 339-40 (1971).
At the trial, defendant claimed that some men sitting in a truck near the warehouse had told him the warehouse was due to be razed and it would be alright for him to enter and take what he wanted. --------
II
Addressing defendant's sentencing issues, we find no merit in defendant's arguments concerning an alleged period of parole ineligibility. Contrary to defendant's contention, the judgment of conviction (JOC) does not impose a period of parole ineligibility, and neither did the judge impose that term at the sentencing hearing. Rather, as required by law, N.J.S.A. 2C:43-2(f)(1), the sentencing judge simply set forth on the record the real-time consequences of the seven-year flat sentence imposed. In that context, the judge explained that defendant would first become eligible for parole in about two and one-half years. The judge also stated that defendant was entitled to 334 days of jail credit, which will further reduce the time he actually spends in State prison.
We find nothing excessive in the sentence imposed. At the sentencing hearing, defense counsel candidly conceded that defendant was eligible for the imposition of a discretionary extended term, by virtue of his extensive prior criminal record. Counsel also conceded that aggravating factors three, six and nine were applicable, a proposition that could hardly be contradicted. This was defendant's seventh indictable conviction, in a criminal career that spanned several decades. Indeed, counsel noted that after defendant was arrested for this offense, he was convicted of yet another burglary in Somerset County.
Making the best of a difficult situation, counsel argued that defendant had been given a relatively lenient plea offer in the latter case and, in this case, deserved a term of probation conditioned on 364 days in the county jail, rather than a State prison term. Counsel argued that defendant was trying to turn his life around by remaining clean and sober, and he was attempting to support his ailing girlfriend. Counsel also argued that defendant did not intend any serious harm in committing the current burglary and was willing to make restitution.
Considering defendant's long adult criminal record, which began with a homicide conviction, and continued through numerous convictions for burglary and drug offenses, the judge found that defendant was "a career criminal" who was highly likely to re-offend. The judge rejected the proposed mitigating factors, finding that none applied. The judge imposed a seven-year term, which was only six months higher than the mid-point of the extended term range of three years to ten years. As previously noted, the judge stated that in real terms, defendant would become eligible for parole in two and one-half years.
Our review of the sentence is limited and deferential. State v. Bolvito, 217 N.J. 221, 228 (2014). We may intervene only upon a "clear showing of abuse of discretion," such as when "(1) 'the sentencing guidelines were violated;' (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" Bolvito, supra, 217 N.J. at 228 (quoting State v. Roth, 95 N.J. 334, 364 (1984)).
We find no error in the sentence imposed. We agree with defendant that mitigating factor one was applicable, N.J.S.A. 2C:44-1(b)(1) (defendant's conduct did not cause or threaten serious harm). However, in light of the countervailing aggravating factors, we are firmly persuaded that including mitigating factor one would not warrant the imposition of a different sentence, and hence a remand is not required. See State v. Cassady, 198 N.J. 165, 183 (2009). A seven-year flat term was not an abuse of the trial court's discretion and does not shock the conscience. Bolvito, supra, 217 N.J. at 228.
III
Defendant's pro se appellate arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comment. As instructed by the trial court, the jury would clearly have understood that if they credited defendant's testimony - that he believed he had permission to enter the warehouse and take the copper pipe - the State would not have proven an essential element of its case. Evidently the jury did not believe defendant's testimony.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION