Opinion
DOCKET NO. A-2256-15T3
01-30-2020
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EARNST WILLIAMS, a/k/a ERNEST WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fuentes, Koblitz and Suter. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-03-0574. Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Our Supreme Court remanded this matter on December 11, 2019 for our consideration of defendant's excessive sentencing issue. State v. Williams, ___ N.J. ___, ___ (2019) (slip op. at 17). Defendant was twenty-one years old at the time of his jury trial for killing a person during a drug transaction. He had no prior indictable convictions. The sentence of fifty years, with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 was excessive under the circumstances. We reverse and remand for a new sentencing hearing.
We incorporate the statement of facts from the Supreme Court decision remanding this matter to us. Williams, ___ N.J. ___ (slip op. at 3-7). Defendant was convicted after trial of aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser included charge of murder, N.J.S.A. 2C:11-3(a)(1) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); and third-degree conspiracy to violate the narcotics laws, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5, and N.J.S.A. 2C:35-10 (count seven). The judge merged all convictions into count two, felony murder.
According to defendant's presentence report, prior to the present offense, defendant was charged on four separate dates with juvenile offenses that were dismissed, mostly based on successful completions of diversionary programs. Defendant was charged twelve times as an adult, resulting in convictions for six disorderly persons offenses. The remaining charges were dismissed.
After reviewing defendant's criminal background in detail, the sentencing judge commented on the severity and frequency of defendant's prior charges rather than his convictions. She said: "There is an ample record of [defendant's] criminal activity prior to the events in this matter. He has a criminal history which included numerous arrests and was, by his own admission, a drug dealer by trade." She also noted that defendant "had the benefit of multiple diversionary programs . . . [but they] obviously did nothing to deter [him] from being rearrested." She found defendant's history demonstrated his "lack of morality and respect for human life."
The presentence report summarized defendant's adult record:
The charges include receiving stolen property, unlawful possession of a handgun, aggravated assault with a weapon, threatens violence, lewd [and] indecent acts, kidnapping, robbery, [controlled dangerous substances] related activity, hindering apprehension, murder and aggravated manslaughter. The present offense represents his first . . . indictable conviction. He has a total of six . . . [disorderly persons] [a]djudications.
Relying in great part on defendant's arrest record, the judge applied aggravating factors: (3) risk of recidivism; (6) criminal history; and (9) specific and general deterrence. N.J.S.A. 2C:44-1(a)(3), (6), (9). Defendant was sentenced to fifty years in prison with an eighty-five percent parole disqualifier and a five-year parole supervision term pursuant to NERA.
"An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). If the trial court's findings are unsupported, we "can intervene and disturb such a sentence with a remand for resentencing." State v. Bieniek, 200 N.J. 601, 608 (2010). A remand is also warranted when "the application of the [sentencing] guidelines to the facts of [the] case make the sentence clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). A defendant should not be penalized for exerting his right to trial. N.J.S.A. 2C:44-1(c)(1).
As we indicated in our initial opinion, "the judge erred in considering defendant's prior record of arrests as a juvenile and adult as an important consideration." State v. Williams, No. A-2256-15 (App. Div. May 21, 2018) (slip op. at 11). Our Supreme Court has held unless "undisputed facts exist or findings are made [at a hearing], prior dismissed charges may not be considered for any purpose." State v. K.S., 220 N.J. 190, 199 (2015) (holding that an individual's history of arrests may not be considered an indication of unlawful behavior on an application to the Pre-trial Intervention Program, N.J.S.A. 2C:43-12). K.S. overruled the notion that a "sentencing judge might find it significant that a defendant who experienced an unwarranted arrest was not deterred . . . from committing a crime thereafter." Ibid. (quoting State v. Green, 62 N.J. 547, 562 (1973)). "[D]eterrence is directed at persons who have committed wrongful acts," not those merely charged. Ibid. A "sentencing judge shall not infer guilt as to any underlying charge with respect to which the defendant does not admit his guilt." Id. at 571.
We are satisfied that the sentencing judge improperly used defendant's arrest history to enhance his sentence. Felony murder carries a mandatory minimum term of thirty years. N.J.S.A. 2C:11-3(b)(1). If defendant's history of arrests without convictions was properly disregarded, the record would not support a finding that defendant's sentence, requiring twelve and one-half years more time in prison than the statutory mandatory period of parole ineligibility, was "eminently fair and reasonable." See Green, 62 N.J. at 562, 571. We hold the sentence is unduly severe and excessive.
Reversed and remanded for a sentencing hearing in conformity 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