Opinion
DOCKET NO. A-1142-12T1
02-18-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY A. WARREN, a/k/a WARREN ANTHONY, a/k/a FARMER AKA ANTHO, a/k/a ARCHY DAVID, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-11-03577. Joseph E. Krakora, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Tried to a jury on charges of burglary, N.J.S.A. 2C:18-2, and theft, N.J.S.A. 2C:20-3a, defendant Anthony A. Warren was convicted only of third-degree theft, the jury being unable to reach a verdict on the burglary charge, which was subsequently dismissed on the State's motion. The judge granted the prosecution's motion for a discretionary extended term and sentenced defendant to the maximum allowable ten-year term of imprisonment with a minimum of five years' parole ineligibility.
Defendant appeals his conviction and sentence. Among his various other arguments, defendant contends that his sentence is unduly disparate from the one imposed on his co-defendant, convicted in a separate proceeding of both burglary and theft and also sentenced to an extended term as a persistent offender. We affirm defendant's conviction. But because we agree that the judge failed to explain adequately the disparate terms imposed, and the record does not allow us to infer his reasons for such, we remand to the sentencing judge for a statement of reasons in accordance with State v. Roach, 146 N.J. 208 (Roach I), cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996), regarding the disparity in sentence between defendant and his co-defendant.
A man stopping at home for lunch in Cherry Hill saw two men coming around from the back of a house on his street carrying a large flat screen television. Deeming their actions suspicious, the man jotted down the license plate number of their car and called the police. Responding to the scene, police found an open window with a screen that had been cleanly cut, as if with a knife. After having ascertained the name of the car's registered owner, other officers went to her home in Collingswood to look for it. Defendant and his co-defendant, James L. Alexander, were arrested a short time later as they pulled up in the car police were seeking, with the flat screen television in the back seat. Defendant, who was sitting in the front seat, had a box cutter in his pants pocket.
The men were tried separately. Alexander was tried first and convicted of both burglary and theft in the third-degree. He was sentenced as a persistent offender to a six-year term of imprisonment with a three-year parole ineligibility term.
We affirmed Alexander's conviction and sentence. State v. Alexander, No. A-1914-09 (App. Div. January 30, 2012).
At defendant's trial, the State contended he and Alexander had used the box cutter to slit the screen to enter the house and were the men spotted by the neighbor carrying out the television, although the witness could not positively identify either man. Defendant did not testify, but Alexander did and admitted his own role in the crime.
According to Alexander, he borrowed a friend's car to take his children to school. After dropping them off, he was flagged down by a man he knew only as "Prime," who asked him for a ride to Cherry Hill. Once there, Prime directed him to stop at a particular house. Saying he would be back in a minute, Prime went around the side of the house and returned with the flat screen television, which he placed in the backseat. Although realizing Prime had stolen the television when he returned with it to the car, Alexander nonetheless offered to trade Prime some speakers for it. Prime then got a phone call and asked Alexander to drop him off at the speed line. As he got out at the Ferry Street station, Prime told Alexander he would call him later about the television.
Shortly after he dropped Prime off, Alexander got a call from defendant, who was at a temp agency on East Federal Street in Camden. Defendant was looking for a ride to his girlfriend's house in Collingswood. Because he needed to return the car to its owner in Collingswood anyway, Alexander agreed to pick up defendant. According to Alexander, defendant had nothing whatsoever to do with the theft of the television; he just happened to be in the car when Alexander was stopped by the police.
After hearing the evidence, the jury convicted defendant of taking or exercising unlawful control over the television but could not reach a verdict on whether he unlawfully entered the home. As noted above, the judge granted the State's motion for an extended term and sentenced defendant to a ten-year term of imprisonment, a maximum term four years longer than Alexander's, with a minimum term of five years, two years longer than the minimum term assigned to Alexander. Defendant raises the following issues on appeal.
POINT I
THE PROSECUTOR'S IMPROPER PREJUDICIAL QUESTIONS AND ARGUMENT DURING THE TRIAL, COUPLED WITH THE INEFFECTIVE ASSISTANCE OF DEFENSE COUNSEL, VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL, U.S. CONST. AMEND XIV; N.J. CONST. (1947) Art. I, Pars. 1, 9, 10 (Not Raised Below).
A. THE PROSECUTOR'S INAPPROPRIATE QUESTIONS AND ARGUMENTS DENIED DEFENDANT [] HIS RIGHT TO A FAIR TRIAL.
B. DEFENDANT [] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL OF THE WITHIN MATTER.
POINT II
THE PROSECUTOR USED IMPERMISSIBLE REASONS IN EXERCISING PEREMPTORY JURY CHALLENGES PURSUANT TO STATE V. GILMORE, 103 N.J. 508 (1986), THEREBY VIOLATING DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. (1947) Art. I, pars. 1, 9, 10.
POINT III
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND DISPARATE.
Although defendant's arguments as to his conviction do not require extended discussion, we address each in turn. Defendant claims that his counsel failed to object to several allegedly improper questions put to Alexander on cross-examination, which focused on Alexander's nine prior convictions, all of which were committed in Camden County. Defendant contends that the questions were calculated to place the jurors in the pool of Alexander's potential victims and worked as a "call to arms." He also claims that specific questions were designed to elicit Alexander's propensity to commit crimes and to taint defendant with the same propensity through their friendship. Defendant contends that the prosecutor exploited these themes improperly in his summation, implying that Alexander's propensity to commit crimes in Camden County made it likely he would lie for his friend or, alternatively, that defendant intimidated Alexander into providing favorable testimony because "snitches get stitches."
Defense counsel did not object to the cross-examination or the prosecutor's remarks in summation. That failure forms the basis of defendant's claim of ineffective assistance. We defer consideration of that claim to an application for post-conviction relief, finding the trial record inadequate to resolve this issue. See State v. Preciose, 129 N.J. 451, 460-62 (1992) (noting ineffective assistance claims are generally not appropriately addressed on direct appeal).
Notwithstanding defendant's claims as to his counsel's performance, arguments raised for the first time on appeal are reviewed under a plain error standard, meaning we disregard such errors unless "clearly capable of producing an unjust result." R. 2:10-2; State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 337 (1971). Applying that standard here, we find no grounds to reverse defendant's conviction.
Reviewing the prosecutor's cross-examination of Alexander, we do not find the improprieties defendant alleges. The focus on Alexander's nine prior convictions as affecting his credibility was entirely proper. See State v. Balthrop, 92 N.J. 542, 544-46 (1983). Although the prosecutor several times mentions that the crimes occurred in Camden County, the questions do not appear calculated to inflame the jurors or constitute the "call to arms" we condemned in State v. Goode, 278 N.J. Super. 85, 89-90 (App. Div. 1994), or State v. Holmes, 255 N.J. Super. 248, 249-52 (App. Div. 1992). Nor do we conclude the prosecutor's questions were calculated to elicit Alexander's, and by extension defendant's, propensity to commit crimes. Instead, the questions appear calculated to emphasize Alexander's extensive criminal record to impugn his credibility and suggest he was lying to protect his friend and to highlight the implausibility of a thief leaving a television he had just stolen behind in someone else's car.
We also find no misconduct in the prosecutor's summation. We expect prosecuting attorneys in criminal cases to make vigorous and forceful closing arguments to juries. State v. Frost, 158 N.J. 76, 82 (1999). So long as their comments are reasonably related to the scope of the admissible evidence presented during the trial, prosecuting attorneys are afforded considerable leeway in making their summations. State v. Harris, 141 N.J. 525, 559 (1995). Alleged improper remarks made in summation must be judged in context. State v. Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005). Judged in the context of defense counsel's summation, in which counsel emphasized a "no-snitching" culture to explain the few details Alexander offered as to Prime, and argued defendant should not be convicted based on his friendship with Alexander, an admitted thief, we view the prosecutor's remarks as merely responsive to the defense themes and not exceeding fair comment on the evidence.
The trial judge held a hearing on defendant's claim that the prosecutor improperly employed his peremptory challenges to exclude African-Americans from the jury. The prosecutor used his peremptory challenges to strike three African-Americans among several others. He explained that he struck juror one, an African-American man, because he did not appear to be paying attention or care about the proceedings, and he reported that he was unemployed and spent his days playing video games with his friends. He struck two African-American women, jurors two and twelve, who identified themselves as Christians and stated they were active in their respective churches. The prosecutor explained that he struck those two jurors on the basis of his belief that jurors who specifically volunteer their Christian faith as being very important in their lives "tend to be [persons] who tend to have trouble judging [other] people" based on his experience in other cases.
After the prosecutor explained the basis for his challenges, defense counsel maintained his objection to the prosecutor's peremptory challenge only as to juror two. Counsel stated on the record he did not object to the prosecutor striking juror twelve, who expressed her belief that "only God" could judge others and acknowledged that her religious beliefs might affect her ability to make a judgment in the case. Defendant contends on appeal that the prosecutor improperly employed his peremptory challenges to exclude African-Americans from the jury based on their religious beliefs.
The judge considered each of the prosecutor's peremptory challenges to African-Americans and made specific findings as to each one, clearly applying the three-part test mandated by the Supreme Court in State v. Gilmore, 103 N.J. 508, 534-39 (1986), and State v. Osorio, 199 N.J. 486, 492-93 (2009). Following a lengthy colloquy in which the court and counsel parsed the difference between challenging a juror based on his or her religion as opposed to the juror's ability to render a judgment in the case before the court based on the juror's religious beliefs, the judge concluded that the prosecutor did not strike the jurors, and specifically juror two, on the basis of race or religion, per se. Instead, the judge concluded that the prosecutor exercised his peremptory challenge on the basis of a sincere belief that the juror would be reluctant, given her volunteered statements as to her Christian faith, to judge defendant, a belief the judge found reasonable given the State's burden of proof at trial.
Those findings are entitled to our deference. State v. Clark, 316 N.J. Super. 462, 473 (App. Div. 1998), appeal after remand, 324 N.J. Super. 558 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Our review of the record of jury selection and the court's consideration of this issue convinces us the judge thoroughly explored the basis of defendant's objection and the prosecutor's motives and did not abuse his discretion in finding the prosecutor's peremptory challenges justifiable on the record. Accordingly, we reject defendant's contention that he is entitled to a new trial on the basis of the prosecutor's peremptory challenges.
We turn now to defendant's sentence. Defendant was twenty-nine years old at sentencing and had an extensive criminal record. He had three juvenile adjudications: receiving stolen property in 1999; attempted robbery in 2000; and eluding in 2001 for which he received a two-year term in Jamesburg. Defendant also had six prior indictable convictions: third-degree receiving stolen property (waived from Family Part) in 2000; third-degree burglary in 2002; third-degree receiving stolen property in 2002; third-degree receiving stolen property in 2002; third-degree receiving stolen property in 2005; and third-degree burglary in 2009. Defendant also had municipal court convictions, a guilty plea to third-degree burglary in another county for which he had not yet been sentenced and a pending third-degree burglary charge in Camden while on bail pending sentencing for this offense, all of which the court declined to consider for sentencing purposes.
The prosecutor, who had also prosecuted Alexander and appeared at his sentencing, pressed the State's motion for an extended term and asked the court to impose a maximum ten-year extended term with a five-year period of parole ineligibility. In doing so, the prosecutor stated:
I know that may seem a little bit harsh but I would suggest that the defendant's prior record supports that. And as a minimum, Judge, as I noted in my brief, the co-defendant, who was convicted of burglary and not theft[], but they're both third degree crimes and the legislature treats them the same and . . . our sentencing laws treat them the same in terms of sentencing exposure.
I know the Court may consider a residential burglary more serious than receiving stolen property and I'd understand why you might feel that way. I can't say I disagree totally but in terms of sentencing, a third degree receiving stolen property is treated the same as a third degree burglary. They're both third degree crimes and they're both punishable between three and five years and they're both eligible for an extended term of five to ten years.
Alexander was actually convicted by a jury of both burglary and theft. The conviction for theft was merged for purposes of sentencing, and Alexander was sentenced to an extended term on the burglary conviction.
The prosecutor explained he emphasized the point that burglary and theft were both third-degree crimes because
the co-defendant . . . was convicted of burglary and got a six, do three by [another judge] with a very similar prior record. The co-defendant's name was James Alexander. He went to trial and got convicted of burglary. [Another judge] gave him a six, do three, and Mr. Alexander had seven prior
indictables, this defendant has six. Mr. Alexander had two prior municipals, this defendant has three. Mr. Alexander . . . didn't have any juvenile adjudications and this defendant had three. So, they're very, very similar prior records. [The other judge] gave the co-defendant a six, do three and I would suggest to the court that really, I don't see any reason why you would go lower than a six, do three for this defendant than [the other judge] did on the co-defendant.
Defense counsel conceded defendant was extended term eligible as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The judge determined defendant qualified for an extended term and found that given "the facts of this case and particularly [defendant's] record, which is particularly egregious . . . [c]ertainly, the court would be remiss not to give him an extended term." The judge found aggravating factors three, six and nine, N.J.S.A. 2C:44-1a(3), (6) and (9), and no mitigating factors. Finding the risk defendant would commit another crime to be "a 99 percent certainty, 98 percent certainty," and having reviewed defendant's extensive criminal record, the judge particularly emphasized the need to deter defendant and others from violating the law.
These particular crimes, as [the prosecutor] pointed out, are particularly, to the extent that any crime or any criminal can be deterred, they are the most likely to be deterred. They're not passion type crimes.
All individuals make some calculation of the risk/reward ratio in terms of any type of criminal behavior and, unfortunately, essentially until now, in doing that risk/reward calculus, [defendant has] figure[d] that the potential reward outweighs the potential risk and, hopefully, this sentence, which I don't think is harsh, by the way . . . [changes that calculus.] [C]itizens are tired of having to live locked down in their own existence, behind bars in their own homes, et cetera, et cetera. And again, I want to note that Mr. Warren was not convicted of burglary, he was convicted of third degree receiving stolen property.
At the conclusion of the hearing, defendant asked about the discrepancy between his sentence and the one meted out to his co-defendant. The judge responded:
I'll address that. Here's the thing. I can't get into [the other judge's] mind. I would have given your co-defendant ten and five. That would have been the easiest decision I made that day.
I can't — I would not give you a harsher sentence if I disagreed with another judge's sentence and I'm not going to give you a more lenient sentence. It's not my sentence. For whatever reason [the other judge] determined only to give six and three to somebody eligible for an extended term and committed a house burglary, all right. That person, in my mind, should do a lot more than ten and five. If I were the Legislature, to me a house burglary is a home invasion, all right. It is violating . . . the sanctity of an individual's home and . . . [the other judge] put on the record why he only gave the co-defendant six and three but I want to be candid, I completely disagree with that sentence.
It is axiomatic a trial court possesses considerable discretion in sentencing, State v. Dalziel, 182 N.J. 494, 500 (2005), and that "[a]ppellate review of the length of a sentence is limited," State v. Miller, 205 N.J. 109, 127 (2011). We are to affirm a sentence, even if we would have imposed a different one, so long as the sentencing judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence imposed is neither inconsistent with the sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70-71 (2014).
In sentencing defendant, the trial court conformed to all sentencing guidelines and followed proper sentencing procedures. Its findings and balancing of the aggravating and (non-existing) mitigating factors are amply supported by the record, State v. O'Donnell, 117 N.J. 210, 216 (1989), and it thoroughly explained its reasons for the sentence imposed, State v. Dunbar, 108 N.J. 80, 97 (1987), overruled in part. State v. Pierce, 188 N.J. 155 (2006). We are satisfied, and defendant does not contest, that the imposition of an extended term was in accord with the statutory factors. N.J.S.A. 2C:44-3a. Although defendant contends the court failed to explain its reasons for imposing a mandatory minimum sentence, see State v. Kruse, 105 N.J. 354, 359-60 (1987), the sentencing transcript allows us to "'readily deduce' the judge's reasoning" in that regard. Miller, supra, 205 N.J. at 129-30 (quoting State v. Bieniek, 200 N.J. 601, 609 (2010)). The court's thorough explanation of the aggravating factors it found - the likelihood of defendant committing another crime, his extensive criminal record and the court's specific emphasis on the need for deterrence, and its inability to find a single mitigating factor make plain its reasons for imposing a mandatory minimum term.
We cannot, however, so "readily deduce" the judge's reasons for the disparity in sentence between defendant and Alexander. The Court has recently reminded that "[o]ne of the Code's paramount goals is to eliminate arbitrary and idiosyncratic sentencing so that similarly situated defendants receive comparable sentences. Ensuring a reasonable degree of uniformity in sentencing is an essential feature of our system of justice." State v. Case, 220 N.J. 49, 63 (2014) (citing State v. Natale, 184 N.J. 458, 485 (2005)). Although a defendant's sentence "'not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter,'" "[d]isparity may invalidate an otherwise sound and lawful sentence." Roach I, supra, 146 N.J. at 232 (quoting State v. Hicks, 54 N.J. 390, 391 (1969)).
As the prosecutor who prosecuted both co-defendants observed at defendant's sentencing, Warren and Alexander had remarkably similar criminal histories. They were roughly the same age at sentencing and both qualified for and were sentenced by different judges to extended terms as persistent offenders. Because defendant asserts the disparity in their sentences on appeal, the State has provided us with Alexander's Presentence Report as well as the transcript of his sentencing hearing. Comparing their prior offense histories, it appears defendant had six prior indictable convictions and Alexander seven. While defendant's convictions, as noted by the sentencing judge, consist exclusively of property crimes, Alexander had convictions for drug possession with intent to distribute and aggravated assault in addition to his convictions for receiving stolen property. And, of course, regarding their convictions here, Alexander was convicted of the arguably more serious charge of burglary, and theft, whereas defendant was convicted only of theft, the jury being unable to reach a verdict on the burglary charge.
The judge addressed the disparity in the sentences in response to a question from defendant, not his counsel, at the end of the sentencing hearing. We remark on that fact because of the Court's observation forty-five years ago that "grievous inequities in sentences destroy a prisoner's sense of having been justly dealt with, as well as the public's confidence in the even-handed justice of our system." Hicks, supra, 54 N.J. at 391. The judge explained the disparity to defendant by stating simply that he "completely disagree[d] with [the co-defendant's] sentence."
In our view, the judge's explanation reduced his otherwise careful and conscientious imposition of sentence on defendant to the level of chance or the proverbial "luck of the judicial draw." State v. Roach, 167 N.J. 565, 570 (2001) (Roach II). Defendant's sentence "would appear to be a 'paradigmatic example of non-uniformity,'" that is, a dissimilar sentence imposed on a similar defendant. Roach I, supra, 146 N.J. at 233 (quoting State v. Pillot, 115 N.J. 558, 576 (1989)). Having reviewed the record of Alexander's sentencing, we are satisfied that judge engaged in every bit as thorough and conscientious an effort in sentencing Alexander as did the trial judge in sentencing defendant. Defendant's disparate sentence, based simply on the court's disagreement with the sentence another judge imposed on Alexander, is unjustifiable. See Ibid.
The State contends defendant's sentence can be justified based on defendant's significant juvenile record, which Alexander does not share. We do not discern this post hoc rationale reflected in the judge's remarks at sentencing.
Although the trial court is not alone in its view that it need not consider imposing a sentence consistent with that of a co-defendant's, which the court believes was erroneously imposed, see Roach I, supra, 146 N.J. at 236 (Coleman, J., dissenting), that position has not commanded a majority of our Supreme Court. Accordingly, while the trial court is privileged to disagree with the Court's holding that it must give the sentence imposed on a similarly-situated co-defendant substantive weight in imposing its own sentence, its privilege does not extend to non-compliance. See Roach II, supra, 164 N.J. at 569-71; Reinauer Realty Corp. v. Borough of Paramus, 34 N.J. 406, 415 (1961).
Accordingly, we remand to the trial court to
determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity. Sentencing based on such added considerations will accommodate the basic discretion of a sentencing court to impose a just sentence on the individual defendant in accordance with the sentencing guidelines while fulfilling the court's
responsibility to achieve uniform sentencing when that is possible.
[Roach I, supra, 146 N.J. at 233-34.]
We affirm defendant's conviction but vacate his sentence and remand to the sentencing judge for reconsideration and a statement of reasons in accordance with Roach I, supra, 146 N.J. 233-34 regarding the disparity in sentence between defendant and his co-defendant.
We also direct that the statement of reasons in the judgment of conviction be corrected to correspond to the sentencing transcript and delete reference to a negotiated plea. See State v. Rivers, 252 N.J. Super. 142, 147 n.1 (App. Div. 1991) (noting in the event of a discrepancy between the court's oral pronouncement of sentence and the sentence described in the judgment of conviction, the sentencing transcript controls and a corrective judgment entered).
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Affirmed in part; reversed in part and remanded. 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