Opinion
DOCKET NO. A-1154-12T4
02-03-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLEAVON L. SHERRILL, a/k/a CLEAVON LAMONT SHERRILL, MICHAEL HOLMES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Whipple. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-02-0252. Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction, following a guilty plea, for first-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1). We affirm.
I.
We discern the following facts from the record. Defendant and co-defendant were traveling on the New Jersey Turnpike and stopped at a rest area. They parked near an unmarked New Jersey State Police van, wherein troopers were conducting surveillance of the parking lot. Defendant collected trash and a gym bag from the back seat of his car and placed them in the trunk. Defendant stood by the open trunk and officers observed him removing a package from the gym bag and placing it in the trunk. Officers exited the van, identified themselves as police, and prevented defendant from closing the trunk. Defendant and co-defendant began to walk away from the vehicle. Defendant was arrested and handcuffed.
After giving defendant Miranda warnings, the officers questioned him. Defendant denied trying to shut the trunk, putting anything in the trunk or trying to leave the scene. When asked where he was coming from, defendant said he was coming from New York City where he had spent the day sightseeing, but was unable to recall any sights he had seen. After obtaining defendant's credentials from his wallet, defendant was presented with a consent to search form (the "consent form"). However, the identification cards contained in his wallet identified defendant as someone else, and an officer copied the name as it appeared on the credentials on the consent form. Defendant's true identity was not determined until he was fingerprinted at the police station.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
One of the officers at the rest area filled out and read the consent form to defendant in its entirety, except for the signature line of the consenter. Defendant told the officer that the car was not his and that they could search it because there was nothing in the car. Defendant did not sign the consent form at the rest area because he was handcuffed and State Police policy is not to un-handcuff an arrestee to sign the form.
After defendant gave verbal consent, officers searched the trunk and found a Ziploc bag of heroin hidden in a speaker cabinet in the trunk. Later, at the police station, defendant was re-presented with the consent form, which he refused to sign. After receiving Miranda warnings again at the police station, defendant gave a taped statement acknowledging that he had traveled to New York to pick up and transport heroin.
Defendant was indicted for second-degree conspiracy, N.J.S.A. 2C:5-2 (Count One); first-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(1) (Count Two); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (Count Three); third-degree hindering, N.J.S.A. 2C:29-3b(4) (Count Four); third-degree exhibiting a false document, N.J.S.A. 2C:21-2.1c (Count Five); and fourth-degree possession of a false document, N.J.S.A. 2C:21-2.1d (Count Six).
Defendant moved to suppress the evidence found in the car, arguing that he had not voluntarily consented to the search. After a suppression hearing, the trial judge denied defendant's motion. Having determined that the testifying officers' testimony was credible and defendant's testimony was not, the judge concluded that defendant had verbally consented to the search of the vehicle in the parking lot. The judge concluded that the State had met its burden by a preponderance of the evidence that defendant had voluntarily consented to the search. The judge also stated:
[S]everal arguments have been presented that are not being contested . . . . [T]he State argues that the arrest[s] of defendants . . . were lawful, and therefore, the evidence seized . . . should not be suppressed on this ground. [Defendants] have not contested whether the detectives . . . had probable cause to effectuate an arrest.
Defendant entered a guilty plea to first-degree possession with intent to distribute, without waiving his right to appeal the denial of his motion to suppress. He was sentenced to ten years in New Jersey State Prison, with forty-five months of parole ineligibility. On appeal, defendant raises the following arguments:
POINT I
THE DRUGS SEIZED IN THE SEARCH OF THE CAR MUST BE SUPPRESSED BECAUSE DEFENDANT DID NOT VOLUNTARILY CONSENT TO THE SEARCH.
A. Any Consent Was Invalid Because It Was Not Sought Until After Defendant Was Illegally Arrested. [Not raised below].
B. The State Did Not Establish Voluntary Consent by a Preponderance of the Evidence.
POINT II
THE SENTENCE OF TEN YEARS IS EXCESSIVE AND SHOULD HAVE BEEN DOWNGRADED. (Not Raised Below).
II.
We give deference to a trial court's findings of fact based upon the court's "opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964). On a motion to suppress, we uphold such findings so long as they are "supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). The findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction[.]" Johnson, supra, 42 N.J. at 162. A trial court's legal conclusions, however, receive no special deference, and appellate review is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
Defendant first challenges the trial court's denial of his motion to suppress the evidence seized in the consent search. "A search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause" prior to conducting a search. State v. Domicz, 188 N.J. 285, 305 (2006) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973)). The New Jersey Constitution requires that "any consent given by an individual to a police officer to conduct a warrantless search must be given knowingly and voluntarily." State v. Carty, 170 N.J. 632, 639 (citing State v. Johnson, 68 N.J. 349, 354 (1975)), modified on other grounds, 174 N.J. 351 (2002). To be voluntary, consent must be "unequivocal and specific" as well as "freely and intelligently given." State v. King, 44 N.J. 346, 352 (1965) (citation and internal quotation marks omitted). Moreover, for consent to be voluntary, the consenting person must have knowledge of the right to refuse consent. Johnson, supra, 68 N.J. at 353-54. The State must prove the validity of such a warrantless search by the preponderance of the evidence. State v. Edmonds, 211 N.J. 117, 128 (2012).
After hearing testimony for several days, the trial judge found that defendant verbally consented to a search of the vehicle he was driving before the search was conducted at the rest area. She found that defendant's testimony was not credible because he had presented false identification and failed to point out the incorrect name on the consent form when it was presented to him. The judge also found that defendant lied to officers regarding his whereabouts on the day he was arrested. The court found the testimony of the officers to be "overwhelmingly consistent with one another" and credible.
In determining that defendant's consent was given knowingly and voluntarily, the trial judge considered the factors tending to show coercion as outlined in King, supra, 44 N.J. at 352-53. She noted that at the time defendant gave consent, he was handcuffed and arrested, did not assist officers with the search, and maintained his innocence prior to the search being conducted. She also found that defendant believed that the officers would find no contraband in the car if the search were conducted, because he had sufficient time to hide the drugs in a speaker box in the trunk before he was arrested and had not refused the initial request to search. Moreover, considering the totality of the circumstances, the court found that defendant's will was not overborne, because of his demeanor during his subsequent taped statement.
The trial judge found that the State had demonstrated by a preponderance of the evidence that defendant's consent was given knowingly and voluntarily. Defendant has not shown that the trial court's factual and credibility determinations were so clearly mistaken "that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.
Additionally, defendant argues that any consent was invalid because his arrest lacked probable cause. However, as noted by the trial judge, defendant had not challenged whether the officers had probable cause for his detention and arrest. As such, defendant raises this issue for the first time on appeal, and reversal is not warranted on this basis unless we find plain error "clearly capable of producing an unjust result." R. 2:10-2. Moreover, we decline to consider issues not properly presented to trial courts when opportunities for such presentations were available, unless there are questions raised on appeal that pertain to the jurisdiction of the trial courts or concern matters of significant public interest. State v. Robinson, 200 N.J. 1, 20 (2009). Accordingly, we decline to address defendant's argument regarding probable cause.
III.
Defendant contends that that his sentence is excessive and should have been downgraded to the second-degree range. Appellate review of a criminal sentence is limited and deferential. State v. Bolvito, 217 N.J. 221, 228 (2014). We reverse only on 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.'" Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Furthermore, a sentence imposed pursuant to a plea agreement is presumptively reasonable. State v. Fuentes, 217 N.J. 57, 70-71 (2014).
Here, the trial court found aggravating factors three, six and nine, and found no mitigating factors. Defendant asserts that the court should have found mitigating factor seven, which applies when a defendant has led a law-abiding life for a substantial period of time before the omission of an offense, and that the court should have downgraded defendant's sentence pursuant to N.J.S.A. 2C:44-1f. The court properly rejected mitigating factor seven because it relied upon the extent of defendant's criminal history in order to find aggravating factor six. The trial judge was clearly convinced that the aggravating factors substantially outweighed the mitigating factors and that defendant was being sentenced pursuant to the Brimage guidelines as the result of a negotiated plea.
State v. Brimage, 153 N.J. 1 (1998).
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The Criminal Code permits a downgraded sentence for a first-degree or second-degree crime only where "the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands" the lower sentencing range. N.J.S.A. 2C:44-1f(2). The standard is a demanding one. See State v. Megargel, 143 N.J. 484, 496-502 (1996) (discussing the standard for imposing a downgraded sentence). Defendant fails to make the required showing of abuse of discretion. See Bolvito, supra, 217 N.J. at 228.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION