Opinion
A-1621-20
05-01-2023
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANDREW E. JOHNSON, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief). Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Rachel M. Lamb, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 17, 2023.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-04-1422.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth E. Hunter, Designated Counsel, on the brief).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Rachel M. Lamb, Assistant Prosecutor, of counsel and on the brief).
Before Gooden Brown and Mitterhoff Judges.
PER CURIAM
In his direct appeal from multiple convictions related to a string of armed robberies committed when defendant was nineteen years of age, in an unpublished opinion, we affirmed defendant's convictions, merged certain counts with others, vacated the sentences imposed on the merged counts, and remanded the matter "for correction of the judgment of conviction." State v. Johnson, A-5301-15 (App. Div. Aug. 9, 2019) (slip op. at 4). We rejected defendant's contention that his sentence was excessive and found no abuse of discretion in the trial judge's imposition of three consecutive terms of imprisonment. Id. at 22-23. On August 13, 2019, the judge entered an amended judgment of conviction (amended JOC) consistent with our remand instructions, imposing an aggregate sentence of thirty-seven years of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant now appeals from the amended JOC raising the following points for our consideration:
POINT I
DEFENDANT'S AGGREGATE [THIRTY-SEVEN]-YEAR WITH [EIGHTY-FIVE PERCENT] SENTENCE THAT WAS IMPOSED WITHOUT THE CONSIDERATION OF HIS YOUTH IS CRUEL AND UNUSUAL PUNISHMENT BECAUSE HE WAS A YOUNG ADULT UNDER THE AGE OF [TWENTY-SIX], AND YOUNG ADULTS AS A CLASS, LIKE JUVENILES, SHARE THE MITIGATING
QUALITIES OF YOUTH; THEREFORE, THERE MUST BE A RESENTENCING PURSUANT TO MILLER V. ALABAMA, 567 U.S. 460, 471 (2012), AND STATE V. ZUBER, 227 N.J. 422 (2017). THE RESENTENCING COURT MUST ALSO RECONSIDER THE CONSECUTIVE SENTENCES IN ACCORDANCE WITH STATE V. TORRES, 246 N.J. 246 (2021), CONSIDER DEFENDANT'S REHABILITATIVE EFFORTS PURSUANT TO STATE V. RANDOLPH, 210 N.J. 330 (2012), AND APPLY THE YOUTH MITIGATING FACTOR, N.J.S.A. 2C:44-1(b)(14).
A. A Court's Sentence Must Take Into Consideration That a Person Was a Child At the Time of the Offense and Possesses the "Distinctive Attributes of Youth"; Otherwise, the Sentence Is Unconstitutional. Additionally, Our Court Has Now Provided a Right to a Miller Resentencing For Juveniles Sentenced For Murder and Who Have Served [Twenty] Years. See State v. Comer, 249 N.J. 359 (2022).
B. As a Class, Young Adults, Like Juveniles, Share the "Distinctive Attributes of Youth."
C. A [Thirty-Seven]-Year With [Eighty-Five Percent] Sentence Imposed Without the Consideration of Youth For Young Adults Like Defendant Is Also Cruel and Unusual Punishment.
D. Defendant Must At Least Be Afforded The Opportunity To Present To a Sentencing Court the Mitigating Qualities of Youth, and No Court Appropriately Considered Defendant's Youth Prior to Sentencing Him.
E. This Court Should Remand For Resentencing Because The Trial Court Did Not Explicitly Find That The Aggregate Sentence Was Fair, Nor Did It Consider Defendant's Age In Imposing Consecutive Sentences, As Required By State v. Torres, 246 N.J. 246 (2021).
F. The Resentencing Court Should Consider Defendant's Rehabilitative Efforts and Apply the Youth Mitigating Factor, "The Defendant Was Under [Twenty-Six] Years of Age At the Time of the Commission of the Offense," N.J.S.A. 2C:44-1(b)(14). See State v. Bellamy, 468 N.J.Super. 29, 38-39 (App. Div. 2021).
POINT II
THE JUDGMENT OF CONVICTION SHOULD BE AMENDED TO PROVIDE FOR PRIOR SERVICE CREDIT FROM THE DATE OF THE ORIGINAL SENTENCING TO THE DATE OF THE RESENTENCING.
For the reasons that follow, we reject defendant's contention that he is entitled to resentencing under Miller and Zuber. However, given the consecutive terms imposed, we remand for the limited purpose of allowing the judge to provide "an explanation for the overall fairness of [the] sentence" as required by Torres, 246 N.J. at 272.
The background of the case is set forth in our unpublished opinion, where we recounted the pertinent evidence as follows:
Co-defendant Ricardo Rivera, Jr., testified that he, defendant, and co-defendant Jarell A. Marson were friends and, on August 2, 2012, carried out a plan to rob a 7-Eleven in Cherry Hill for the purpose of stealing money. Consistent with that plan, Rivera waited in his car as the getaway driver, while defendant and Marson entered the 7-Eleven to execute the robbery. When defendant and Marson returned to the car, they told Rivera they stole $300 from the cash register. Rivera was given sixty dollars and the other two split the remaining proceeds taken from the register.
[Johnson, slip op. at 5.]
Marson also testified against defendant. He related that when they "entered the 7-Eleven between 11:00 p.m. and midnight," "he was carrying a metal pipe and defendant a gun, and their faces were covered." Ibid. During the robbery, they struck the store clerk on the head with their respective weapons when the clerk did not promptly respond to their demand to "tell them where the safe was located" and forced the clerk to "open the cash registers." Id. at 5-6. After "Marson grabbed money from the registers," they "ran from the store and got into Rivera's car." Id. at 6. "The clerk's testimony of what occurred in the 7-Eleven was consistent with Marson's, although the clerk added that because they were masked, he could not identify his assailants." Ibid. "The clerk further noted he called the police after Marson and defendant ran from the store." Ibid.
Rivera testified that after defendant and Marson robbed the 7-Eleven, the three discussed robbing a
Wendy's in the same municipality. They decided to carry out their plan at 2:00 a.m., when the restaurant was closing. Like the first robbery, they agreed Rivera would wait in his car nearby as the other two entered and robbed the Wendy's. Marson testified that when he and defendant got to the restaurant, Marson was carrying the same pipe and defendant the same gun they had when they entered the 7-Eleven earlier. Both were dressed in dark clothing and their faces were covered.
[Ibid.]
According to Marson, during the Wendy's robbery, defendant pointed his gun at several employees. Id. at 6-7.
[W]hile specifically pointing the gun at the manager, defendant told him to open the safe. The manager complied and pulled money out of the safe. Defendant and Marson took approximately $500 of the money removed from the safe, fled the restaurant, and got into Rivera's car, which was parked at a predetermined location. Rivera was given a portion of the robbery proceeds, and Marson and defendant split the rest.
Testimony provided by [the] Wendy's manager was essentially consistent with Marson's; the manager added he contacted the police as soon as Marson and defendant fled. However, because defendant and Marson's faces were covered, the victims of the robbery could not identify them.
[Id. at 7.]
"Marson testified that on August 5, 2012, he, defendant, and Rivera discussed robbing another entity." Ibid.
While the three were riding in Rivera's car, they spontaneously decided to rob another 7-Eleven in Cherry Hill, which was different from the one they had robbed three days before. Rivera dropped Marson and defendant off and the two approached the store.
Marson noted that, like the first two robberies, he and defendant wore dark clothing and their faces were covered. Marson carried the same metal pipe and defendant the same gun. As defendant reached for the door handle, Marson saw a clerk inside of the store and noticed his "arm reach down" to press what Marson surmised was an alarm. Marson then heard an alarm go off. Meanwhile, defendant had tried to but was unable to open the door because it was locked. Marson and defendant ran to where Rivera was waiting and the three drove off.
[Id. at 8.]
Following a vehicular chase, police apprehended Rivera and Marson, but defendant evaded apprehension by "jump[ing] out of the car." Ibid.
When the police approached the car, they observed a gun on the floor in front of the passenger's seat and arrested Rivera and Marson.
In addition to other evidence, a search of the car revealed a metal pipe, as well as a cell phone that belonged to defendant. Marson and Rivera ultimately gave statements confessing their and implicating defendant's involvement in the two robberies and the attempted robbery. Marson and Rivera subsequently pled guilty to various charges and, as part of their plea agreement, consented to testify against defendant.
[Id. at 9.]
Following his trial,
[a] jury convicted defendant . . . of two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; three counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; one count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); three counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); one count of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); three counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); one count of third-degree attempted theft, N.J.S.A. 2C:20-2(b)(2)(d); five counts of fourth-degree aggravated assault (pointing a firearm), N.J.S.A. 2C:12-1(b)(4); three counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and one count of fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).
[Id. at 2.] As previously stated, we affirmed the convictions and, other than merging certain counts, "affirm[ed] defendant's sentence," id. at 4, which included the following consecutive terms: "fifteen years for first-degree robbery of the 7-Eleven on August 2, 2012 (count one); fifteen years for first-degree robbery of Wendy's on August 3, 2012 (count ten); . . . and seven years for second-degree conspiracy to commit robbery at the 7-Eleven on August 5, 2012 (count twenty-two)." Id. at 22. The sentences on the remaining counts were concurrent sentences. Ibid.
In rejecting defendant's contention that the imposition of three consecutive terms was excessive, we stated:
As for the consecutive terms of imprisonment, the court sentenced defendant in the middle range for the first-degree offenses and at essentially the midpoint range for the second-degree offense.
Although defendant was only nineteen years of age when he committed the subject offenses and had not been convicted of any offenses as an adult, the trial court considered defendant's juvenile history. The court noted defendant had been adjudicated a delinquent for burglary in 2008 and robbery in 2010, and served time for the latter offense at the State Home for Boys in Jamesburg for approximately thirteen months before being released on juvenile parole. While on parole he committed the subject offenses.
The court properly weighed and considered each aggravating and mitigating factor, see N.J.S.A. 2C:44-1(a) and (b), as well as the factors in State v. Yarbough, 100 N.J. 627, 643-44 (1985). The court's reasons for imposing the sentence were supported by competent and credible evidence in the record.
[Johnson, slip op. at 22-23.]
In this ensuing appeal from the August 13, 2019 amended JOC, defendant first argues he is entitled to resentencing under Miller and Zuber because his three consecutive sentences "imposed for offenses he committed at the age of [nineteen] without the consideration of youth violates the federal and state constitutions' prohibitions against cruel and unusual punishment." We disagree.
"Miller and Zuber are uniquely concerned with the sentencing of juvenile offenders to lifetime imprisonment or its functional equivalent without the possibility of parole." State v. Ryan, 249 N.J. 581, 601 (2022). In Miller, the United States Supreme Court held that "mandatory life [sentences] without parole" for juvenile offenders "under the age of [eighteen] at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" 567 U.S. at 465. In Zuber, our Supreme Court applied the principles enunciated in Miller to any juvenile sentenced to life imprisonment without parole or an aggregate term that is "the practical equivalent of life without parole." Zuber, 227 N.J. at 447.
In Zuber, one of the defendants, who was seventeen when he committed the underlying offenses, was serving a 110-year sentence and was not eligible for parole until he was seventy-two years old. Id. at 430-32. The other defendant, who was also seventeen at the time he committed the underlying offenses, was serving a seventy-five-year sentence and was not eligible for parole until he was eighty-five years old. Id. at 433.
Here, defendant was not a juvenile at the time he committed the armed robberies and related offenses-he was nineteen years of age. See N.J.S.A. 2A:4A-22(a) (defining "juvenile" as "an individual under the age of [eighteen] years"). Most significantly, defendant's aggregate thirty-seven-year NERA sentence, with thirty-one-and-one-half years of parole ineligibility, while arguably lengthy, does not implicate the concerns addressed by our Supreme Court in Zuber. Critically, defendant was not sentenced to life without parole or even "the practical equivalent of life without parole." Zuber, 227 N.J. at 429. Defendant will be fifty years old when he is eligible for parole, twenty-two years and thirty-five years younger than the respective defendants in Zuber would have been. Thus, defendant's sentence is not proscribed by either Miller or Zuber.
According to the Department of Corrections website, defendant's maximum release date is January 2044.
Next, defendant argues he is entitled to a "remand for resentencing" because "the trial court did not explicitly find that the aggregate sentence was fair nor did it consider defendant's age when imposing . . . consecutive sentence[s]" as "required" under Torres. The State concedes that a limited remand may be proper "for the sole purpose of making an explicit fairness statement."
After the amended JOC was entered on August 13, 2019, our Supreme Court held in Torres that "essential to a proper Yarbough sentencing assessment" is "[a]n explicit statement, explaining the overall fairness of a sentence imposed on a defendant for multiple offenses in a single proceeding." Torres, 246 N.J. at 268. The Torres Court explained that the purpose of an explicit statement explaining the overall fairness was "to underscore" and "promote" the "concepts of uniformity, predictability, and proportionality" that underlie the Yarbough factors. Id. at 252-53. Thus, the Court required "an explanation for the overall fairness of a sentence by the sentencing court" to facilitate "appellate review of lengthy consecutive sentences." Id. at 272.
The Torres Court also acknowledged that "[a] defendant's age is doubtlessly among the information that courts should consider when calibrating a fair sentence" and "[a]ssessing the overall fairness of a sentence requires a real-time assessment of the consequences of the aggregate sentences imposed, which perforce includes taking into account the age of the person being sentenced." Id. at 273. Although "age is a fact that can and should be in the matrix of information assessed by a sentencing court," "age alone cannot drive the outcome." Id. at 273-74.
Recently, in State v. Amer, 471 N.J.Super. 331 (App. Div.), certif. granted, 252 N.J. 89 (2022), we applied "the Court's guidance in Torres" to "vacate [a defendant's] sentence and remand for resentencing . . . to allow the judge to provide '[a]n explicit statement, explaining the overall fairness' of the sentences imposed." Id. at 359 (third alteration in original) (quoting Torres, 246 N.J. at 268). There, following a jury verdict finding the defendant guilty of multiple offenses stemming from a series of burglaries, the defendant was sentenced "to four consecutive terms of imprisonment of four years each, i.e., one four-year term for each day [the defendant] committed burglaries in November 2016." Id. at 348.
The sentencing judge also ordered the "sixteen-year aggregate sentence to run consecutively to the sentence [the] defendant was serving in Pennsylvania," ibid., for burglaries he committed there "in December 2016, following his release from custody in New Jersey," id. at 359. Despite rejecting the defendant's contention that the sentence was excessive and finding "no reason to second-guess the judge's aggravating and mitigating factors analysis" or the sentencing judge's application of the Yarbough factors to support the imposition of consecutive sentences, id. at 358, "in an abundance of caution, we remand[ed] th[e] matter for resentencing due to the Court's recent holding in Torres." Id. at 355.
Here, in our unpublished opinion, we previously determined that the judge's application of the Yarbough factors was legally and factually sound. Johnson, slip op. at 23. We also determined that the judge's aggravating and mitigating factors analysis was proper. Id. at 22-23. Notwithstanding the judge's compliance with the sentencing guidelines and Yarbough, a remand for "[a]n explicit statement, explaining the overall fairness" of defendant's aggregate sentence consistent with Torres is called for out of "an abundance of caution." Amer, 471 N.J.Super. at 359.
We hastily add that the remand should be limited to a Torres analysis, rather than a complete resentencing as suggested by defendant.
[W]hen "reconsideration" of sentence or "resentencing" is ordered after appeal, the trial court should view defendant as he stands before the court on that day unless the remand order specifies a different and more limited resentencing proceeding such as correction of a plainly technical error or a directive to the judge to view the particular sentencing issue from the vantage point of the original sentencing.
[State v. Randolph, 210 N.J. 330, 354 (2012).]
Here, we direct the judge to conduct the Torres analysis of the overall fairness of defendant's aggregate sentence from the vantage point of the original sentencing record. "[E]vidence of defendant's post-sentencing rehabilitation" is "outside the scope of th[is] remand order." Id. at 353. Thus, the judge need not consider any "post-conviction rehabilitative efforts" undertaken since defendant was first sentenced, id. at 355, and "should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found" because "[t]hose determinations remain untouched by this decision," State v. Natale, 184 N.J. 458, 496 (2005) (instructing the trial court to "not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found" and limiting the new sentencing hearing to "the original sentencing record"). But cf. State v. Comer, 249 N.J. 359, 369-71 (2022) (allowing juveniles sentenced to mandatory sentences of at least thirty years without parole under N.J.S.A. 2C:11-3(b)(1) "to petition for a review of their sentence after they have served two decades in prison" for the trial court to assess the juvenile's rehabilitative efforts, "among other relevant evidence," and determine whether "a lesser sentence" is warranted).
Although defendant's age should be considered when assessing the overall fairness of the sentence under Torres, defendant's claim that "[t]he resentencing court should also apply the youth mitigating factor" is misguided. On October 19, 2020, the Legislature amended N.J.S.A. 2C:44-1 to add mitigating factor fourteen, N.J.S.A. 2C:44-1(b)(14), which permits consideration of the defendant's age as a mitigating factor when "[t]he defendant was under [twenty-six] years of age at the time of the commission of the offense." The amendment provided that "[t]his act shall take effect immediately." L. 2020, c. 110, § 2.
In State v. Lane, 251 N.J. 84, 87 (2022), our Supreme Court held that mitigating factor fourteen does not apply retroactively. The Court found "in the statutory language no indication that mitigating factor fourteen applies to defendants sentenced prior to the provision's effective date." Ibid. The Court, however, noted that mitigating factor fourteen is to be applied "not only to defendants sentenced for the first time on or after October 19, 2020, but also to defendants resentenced on or after that date for reasons unrelated to mitigating factor fourteen." Id. at 97 n.3.
In this case, if defendant was entitled to resentencing under Miller and Zuber, which he is not, the judge would be obligated to consider mitigating factor fourteen on remand. See ibid. However, because defendant is only entitled to a limited remand under Torres, consideration of mitigating factor fourteen is not permitted. Notably, defendant's claim that the remand court should apply mitigating factor fourteen goes to an excessive sentence argument because it "relat[es] to the determination of aggravating and mitigating factors, the balancing thereof and the conclusions resulting from that balancing." State v. Ervin, 241 N.J.Super. 458, 472 (App. Div. 1989). Because defendant has already raised and resolved an excessive sentence claim in his direct appeal, his attempt to relitigate that issue is barred by the law of the case doctrine. See State v. Njango, 247 N.J. 533, 544 (2021) ("The law-of-the-case doctrine is a non-binding rule intended to prevent relitigation of a previously resolved issue in the same case." (quoting State v. K.P.S., 221 N.J. 266, 276 (2015))).
Finally, we decline to consider defendant's argument, raised for the first time on appeal, that he is entitled to prior service credits. It is well-settled that "'our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Defendant did not raise this issue before the trial judge when the amended JOC was entered, and it is not jurisdictional in nature nor does it substantially implicate the public interest.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.