Opinion
DOCKET NO. A-0830-13T4
08-21-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN LAWLESS, a/k/a LAWLESS JOHN, a/k/a GRANOZO JOHN, a/k/a LAWLESS JR. JOHN, a/k/a LAWLESS JOHN, JR., Defendant-Appellant.
John J. Zarych argued the cause for appellant (Law Offices of John J. Zarych, attorneys; Mr. Zarych, of counsel; Brenden T. Shur, on the brief). Gretchen A. Pickering, Assistant Prosecutor, argued the cause for respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-01-0022. John J. Zarych argued the cause for appellant (Law Offices of John J. Zarych, attorneys; Mr. Zarych, of counsel; Brenden T. Shur, on the brief). Gretchen A. Pickering, Assistant Prosecutor, argued the cause for respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the brief). PER CURIAM
Defendant John Lawless pled guilty to aggravated manslaughter and received a sentence of thirty years imprisonment. He later appealed his conviction and sentence. We affirmed his conviction, but remanded for resentencing, which the Supreme Court affirmed. See State v. Lawless, 423 N.J. Super. 293 (App. Div. 2011), aff'd, 214 N.J. 594 (2013). Defendant now appeals from the twenty-four year sentence that was imposed at his resentencing. He argues:
POINT I: THE COURT ERRED IN CONSIDERING FACTORS BEYOND THE INJURIES OF BRITTANY AND SHERI SHELTON WHEN DETERMINING THE APPROPRIATE AMOUNT OF WEIGHT TO GIVE TO AGGRAVATING FACTOR ONE UPON RESENTENCING.In response, the State argues that the Supreme Court's remand for resentencing did not limit the trial court's considerations to only the injuries Brittany and Sheri Shelton sustained, and that the trial court properly considered defendant's prior convictions for driving while intoxicated.
POINT II: THE COURT ERRED IN CONSIDERING DEFENDANT'S PRIOR DRIVING WHILE INTOXICATED CONVICTIONS WHEN GIVING GREAT WEIGHT TO AGGRAVATING FACTOR ONE.
We have considered the parties' arguments in light of our review of the record and the applicable legal principles. We affirm.
The Supreme Court summarized the events that led to defendant's conviction and sentence. Lawless, supra, 214 N.J. at 601-02. Specifically, on September 12, 2009, defendant blacked out while driving along Route 9 in Lower Township. He then veered into the northbound lane and collided head-on with another vehicle, killing the driver, Fredrick Shelton, and seriously injuring the two passengers, his wife and daughter, Sheri and Brittany Shelton. Ibid. Earlier that day, defendant had consumed twelve beers at a motorcycle weekend in Wildwood, and had a blood alcohol content of .229 percent. Ibid. He also was driving with a suspended license, and had four previous convictions in his home state of Pennsylvania for driving while intoxicated. Ibid.
After the accident, defendant gave the police a false name, address, and social security number. He also claimed that an unidentified friend had been driving his vehicle, notwithstanding that he was wearing only one sandal and the matching sandal was found between the brake and accelerator of his car. Id. at 602.
A Cape May grand jury indicted defendant on charges of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); first-degree vehicular homicide, N.J.S.A. 2C:11-5; third-degree causing death while driving with a suspended license, N.J.S.A. 2C:40—22; fourth-degree causing serious bodily injury while driving with a suspended license, N.J.S.A. 2C:40-22; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of third-degree assault by auto, N.J.S.A. 2C:12-1(c)(3); and third-degree hindering prosecution, N.J.S.A. 2C:29-3(b).
On September 13, 2010, defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4(a), and driving while intoxicated, N.J.S.A. 39:4-50, with sentencing left to the discretion of the court. Id. at 603. The court sentenced defendant to thirty years for aggravated manslaughter, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Ibid.
In its sentencing of defendant, the court found aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity and seriousness of harm inflicted on the victims, based upon the injuries suffered by Sheri and Brittany Shelton. The court also found aggravating factors three, the risk that defendant would commit another crime, N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior criminal record and the seriousness of the offense of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). Lawless, supra, 214 N.J. at 604. As to factor nine, the court relied upon: defendant's prior criminal history, which included seven driving while intoxicated arrests between 1996 and 2005, and four convictions, with "the level of alcohol in his body on the occasion of each never less than 200 percent of the legal limit . . . in the State of New Jersey," and several of the incidents involving "motor vehicle accidents and the endangerment of the health and welfare of other individuals"; defendant's history of alcohol abuse and his failure to seek treatment; and defendant's attempt to avoid responsibility after the accident. Lawless, supra, 423 N.J. Super. at 306. The court found no mitigating factors. Lawless, supra, 214 N.J. at 604.
Defendant appealed and we "vacate[d] the sentence" and "[r]emanded for reconsideration" of the sentence "based upon the applicable aggravating factors." Lawless, supra, 423 N.J. Super. at 298, 308. We held that aggravating factor two could not be used, however, to address the injuries suffered by the two passengers, who were not victims of the aggravated manslaughter to which defendant pled guilty, id. at 303-05, and that aggravating factor six could not be based upon prior convictions for motor vehicle offenses, which were not "crimes" or "offenses" under the Criminal Code. Id. at 305. Otherwise, we found no error in the court's consideration of the aggravating and mitigating factors, or in the length of the sentence imposed. Id. at 305-08.
On appeal by the State, the Supreme Court considered our decision with respect to aggravating factor two and affirmed, holding that "[g]iven defendant's guilty plea to only one criminal offense, aggravated manslaughter, . . . the sole 'victim' for purposes of N.J.S.A. 2C:44-1(a)(2) was the deceased driver." Lawless, supra, 214 N.J. at 600. However, the Court further held that
the harm inflicted upon the decedent's wife and daughter . . . may be relevant to the court's application of N.J.S.A. 2C:44-1(a)(1), subject to the principle that sentencing courts must avoid double-counting any element of an offense as an aggravating factor, State v. Kromphold, 162 N.J. 345, 353 (2000). The injuries suffered in the collision by the two passengers may be considered part of the "nature and circumstances of the offense." N.J.S.A. 2C:44-1(a)(1). Accordingly, the sentencing court may consider aggravating factor one, N.J.S.A. 2C:44-1(a)(1), when defendant is resentenced on remand.
[Id. at 600-01.]
Thereafter, in remanding for defendant to be "resentenced," id. at 614, with the sentencing court allowed to "consider aggravating factor one, N.J.S.A. 2C:44-1(a)(1)," id. at 601, the Court reiterated:
In its discretion, the sentencing court may consider the severe injuries suffered by Sheri Shelton and the less serious but significant injuries suffered by her daughter Brittany as part of the "nature and circumstances of the offense" inquiry authorized by N.J.S.A. 2C:44-1(a)(1). Defendant's conduct in driving while intoxicated and colliding with the Shelton family's vehicle not only put Fredrick Shelton at risk, but also imperiled the safety of his wife and daughter. The injuries that the surviving victims sustained in the collision between defendant's vehicle and their own may be
pertinent to the court's review of aggravating factor one.The Court "remanded to the sentencing court for imposition of defendant's sentence in accordance with [its] opinion." Ibid.
[Id. at 615.]
On remand, the court sentenced defendant on August 29, 2013, to twenty-four years imprisonment, subject to NERA. The court did not rely on its earlier findings as to aggravating factors two and six, in accordance with the appellate opinions, but continued to find aggravating factors three and nine, for the reasons discussed in its prior sentencing decision.
The court also found aggravating factor one for the reasons identified in the Court's opinion. Responding to defendant's argument that his behavior was "not premediated or intentional," the sentencing court noted defendant chose to consume a large quantity of alcohol and then drive while his license was suspended, understanding the consequences of those actions from his previous driving history, and after the collision had attempted to evade criminal culpability for his acts.
The court assigned great weight to each of the three aggravating factors, and found no mitigating factors. However, based upon the supplemental information submitted regarding defendant's rehabilitation efforts while incarcerated, the court chose to reduce the prior sentence by six years, in recognition of the progress defendant seemingly had made in addressing his alcoholism.
In his present appeal, defendant argues that the court erred in its analysis of aggravating factor one, by considering facts other than the injuries suffered by Sherri and Brittany Shelton. And he specifically complains about the court's consideration of his driving-while-intoxicated convictions in connection with aggravating factor one. Essentially, defendant argues that the Court remanded for only a limited resentencing proceeding, and the trial court exceeded that limit. We disagree.
We vacated defendant's original sentence and directed the court to resentence him in a manner consistent with our opinion. The Supreme Court agreed with the remand and did not limit it in any fashion to just the factors addressed in its opinion.
The sentencing court properly conducted defendant's resentencing by considering all relevant factors. A remand for a full resentencing "necessarily involves the reevaluation and reweighing of aggravating and mitigating factors." State v. Randolph, 210 N.J. 330, 333 (2012). See also State v. Tavares, 2 86 N.J. Super. 610, 616 (App. Div.) ("[W]here, as here, we remanded for resentencing--or where we direct reconsideration without directing the imposition of a specific sentence, the sentencing proceedings must be conducted anew"), certif. denied, 144 N.J. 376 (1996).
The sentencing court did not err to the extent it reviewed all of the relevant facts when considering aggravating factor one, "[t]he nature and circumstances of the offense, and the role of the actor therein . . . ." N.J.S.A. 2C:44-1(a)(1). Relevant to its review was, as the Court stated, the harm to the passengers, Lawless, supra, 214 N.J. at 600-01, 615, as well as defendant's attempt to avoid responsibility after the accident, see State v. McGuire, 419 N.J. Super. 88, 158-59 (App. Div.), certif. denied, 208 N.J. 335 (2011); State v. Radziwil, 235 N.J. Super. 557, 575 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990), and defendant's choice to consume a large amount of alcohol and drive with a suspended license, knowing the potential consequences. See, e.g., State v. Devlin, 234 N.J. Super. 545, 557 (App. Div.), certif. denied, 117 N.J. 653 (1989).
In this case, defendant actually benefited from the court's full resentencing and consideration of all sentencing factors anew. Specifically, because the court had the opportunity to consider evidence of defendant's rehabilitative efforts undertaken after his original sentencing, Randolph, supra, 210 N.J. at 333, 354; State v. Towey, 244 N.J. Super. 582, 593-94 (App. Div.), certif. denied, 122 N.J. 159 (1990), he received a lighter sentence than the one originally imposed.
To the extent defendant complains about the court considering various facts that were not helpful to defendant, they were, in fact, addressed primarily in response to his arguments at resentencing. For example, defendant argued that his behavior was "not premediated or intentional," and, therefore, aggravating factor one did not apply. In response, the court noted defendant chose to consume a large quantity of alcohol and then drive while his license was suspended, understanding the consequences of those actions from his previous driving history, and after the collision had attempted to evade criminal culpability for his acts, which were all appropriate facts to support the court's findings.
The court followed the sentencing guidelines in imposing a sentence consistent with the record and within the permissible range of ten-to-thirty years, N.J.S.A. 2C:11-4(c). We have no reason to disturb the twenty-four year sentence imposed. State v. Case, 220 N.J. 49, 63-65 (2014); State v. Bolvito, 217 N.J. 221, 228 (2014); State v. Hudson, 209 N.J. 513, 528 (2012); State v. Roth, 95 N.J. 334, 365-66 (1984).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION