Opinion
DOCKET NO. A-3694-14T1
09-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARK BOND, a/k/a LARRY JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent, (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Currier. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 12-12-2513. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Christopher S. Porrino, Attorney General, attorney for respondent, (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Mark Bond appeals from a judgment of conviction (JOC) entered on February 18, 2015, sentencing him to a fourteen-year term of imprisonment, with a fifty-four-month parole disqualifier, for a violation of probation (VOP). Defendant's appeal is limited to the sentence imposed. We affirm.
We briefly set forth the relevant history. On July 22, 2013, defendant pled guilty to second-degree possession with intent to distribute a controlled dangerous substance (CDS) in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). Plaintiff also pled guilty to third-degree possession with intent to distribute CDS in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). On August 5, 2013, defendant was sentenced to five years of special Drug Court probation with an alternate sentence of fourteen years in prison and fifty-four months of parole ineligibility.
On February 18, 2015, defendant pled guilty to multiple violations of his special probation, including (1) failure to report to probation, (2) failure to keep his probation officer advised of a change of address, (3) testing positive for cocaine, (4) failure to submit to drug or alcohol testing, (5) failure to pay court-imposed financial obligations, and (6) a new offense, obstructing the administration of law. Defendant was subsequently sentenced to his alternate sentence of fourteen years in prison and fifty-four months of parole ineligibility.
On appeal, defendant initially averred that the sentencing court erred in ordering defendant to serve the alternative-term sentence without considering a lower sentence, because, according to defendant, the court retained the discretion to impose a sentence in the ordinary range for the violation of special probation. Defendant subsequently withdrew this argument from his brief by letter dated October 23, 2015, following our Supreme Court's decision in State v. Bishop, 223 N.J. 290 (2015). Consequently, defendant only presents the following point of argument for our consideration on this appeal:
UNDER THE APPELLATE DIVISION'S DECISION IN BISHOP, THE RESENTENCING COURT RETAINED THE DISCRETION TO IMPOSE A VOP SENTENCE AT THE BOTTOM OF THE EXTENDED TERM RANGE.
Defendant's appeal focuses on the extended-term sentence. Our review of the judge's sentencing decision is limited and deferential. See State v. Grate, 220 N.J. 317, 337 (2015). There is no dispute that defendant was eligible for a discretionary extended term based on his prior convictions. N.J.S.A. 2C:44-3(a). However, defendant argues that the resentencing court was required to treat the State's recommended alternate Brimage sentence as a cap on the permissible range of extended-term sentences to be imposed on the VOP. Defendant claims that the resentencing court, instead, imposed the alternate sentence as if it had been a pre-determined, agreed-upon punishment for the VOP "without considering or otherwise explaining how the removal of mitigating factor ten alone could justify a maximum sentence." We disagree.
State v. Brimage, 153 N.J. 1, 3 (1998) (holding that "prosecutors must be guided by specific, universal standards in their waiver of mandatory minimum sentences"). This holding led to the creation of the Attorney General Guidelines, aptly renamed the Brimage Guidelines.
First, the record shows that in deciding defendant's sentence, the sentencing judge went through a cogent, step-by-step analysis of defendant's prior convictions. In total, defendant's criminal history included sixteen felony convictions, three parole violations, and two probation violations. The judge then conducted a de novo review of the aggravating and mitigating factors present at the time of the original sentencing and resentencing pursuant to N.J.S.A. 2C:35-14(4) and State v. Baylass, 114 N.J. 169, 178 (1989). During this review, the judge explained that "[c]learly, there is a risk that the defendant will commit another offense based on all that history." Consequently, the judge found that aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); and (6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted) applied. The judge further explained that "plainly, there is a need to deter defendant and others from violating the law" and therefore found aggravating factor (9) (a strong need for deterrence) to be applicable as well. The judge found that mitigating factor N.J.S.A. 2C:44-1(b)(10) (amenability to probation) no longer had any application because defendant, as a two-time participant in Drug Court probation, was in a better position than others to understand what his obligations would be while on Drug Court probation, yet still absconded from the program for over four months. The judge appropriately sentenced defendant to the alternate sentence of fourteen years in prison with a fifty-four-month parole disqualifier, not because it was a "predetermined" punishment as defendant claims, but because "[t]he defendant, by any standard, has an extensive criminal history." Furthermore, defendant argues that the removal of mitigating factor ten alone could not justify a maximum Brimage sentence. However, defendant was not sentenced to special Drug Court probation as a result of the weighing of aggravating and mitigating factors. Defendant was instead sentenced to special probation pursuant to N.J.S.A. 2C:35-14. This differs from the sentencing of regular probation, which requires the judge to weigh the aggravating and mitigating factors enumerated in N.J.S.A. 2C:44-1(a) and (b). State v. Clarke, 203 N.J. 166, 176 (2010). Consequently, defendant received his VOP sentence, not as a result of the subtraction of a mitigating factor, but as a result of his extensive criminal history. For the foregoing reasons, we find that the sentencing judge appropriately sentenced defendant to a fourteen-year term of imprisonment with fifty-four months of parole ineligibility.
Defendant claimed that he abandoned Drug Court because one of the counselors at the treatment facility made a racially-insensitive remark towards him. However, the record shows that defendant was transferred to another facility immediately following the incident. It was at the second facility that defendant absconded from treatment for over four months. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION