STATE OF NEW JERSEY v. WILLIAM L. DUNBAR (19-04-0488, BURLINGTON COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1555-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM L. DUNBAR,
Defendant-Appellant.
_______________________
Submitted September 14, 2022 – Decided September 19, 2022
Before Judges Haas and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 19-04-
0488.
Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth E. Hunter, Designated Counsel, on the
brief).
LaChia L. Bradshaw, Burlington County Prosecutor,
attorney for respondent (Jennifer Paszkiewicz,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant William L. Dunbar appeals from the Law Division's November
17, 2020 order denying his motion for a reduction of the ten-year prison sentence
the court previously imposed on him for first-degree aggravated manslaughter.
We affirm.
On August 18, 2018, defendant attended a concert with his mother. While
there, he consumed a number of alcoholic beverages. Defendant's mother drove
him to her home after the concert. Later that evening, defendant left his mother's
home in his own car. He could feel the effects of the alcohol, but drove anyway.
Because he was impaired and driving at a high rate of speed, defendant failed to
negotiate a curve and struck the victim's car from behind. The victim's car hit a
utility pole. The victim was pronounced dead at the scene.
A blood sample was taken approximately four hours later. It revealed that
defendant had a .118% blood alcohol reading at that time. Information
recovered from the electronic data recorder in defendant's car showed he was
traveling over 100 miles per hour during the five seconds immediately prior to
the collision. On April 16, 2019, a Burlington County grand jury charged
defendant in a two-count indictment with first-degree aggravated manslaughter
and second-degree vehicular homicide.
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On January 6, 2020, the trial judge conferenced the case in chambers with
defendant's attorney and the Assistant Prosecutor. 1 During the conversation, the
attorneys stated that a sentence of eight or nine years "would be acceptable."
However, the attorneys did not reach a final agreement. Instead, the State stated
it would continue to seek a sentence of ten years if defendant pled guilty to first-
degree manslaughter. In addition, the judge made no representations as to the
maximum length of the sentence he would impose if defendant pled guilty. See
R. 3:9-3(c).
On January 22, 2020, defendant entered an "open plea" 2 to first-degree
aggravated manslaughter. The State represented that in return for the plea, it
would recommend the court impose a ten-year sentence, which was the
minimum for this offense. 3 See N.J.S.A. 2C:11-4(c). On the other hand,
defendant's attorney planned to argue that the judge should sentence defendant
1
There is no verbatim record of this conference.
2
"An 'open plea' [is] one that d[oes] not include a recommendation from the
State, nor a prior indication from the court, regarding sentence." State v. Ashley,
443 N.J. Super. 10, 22 (App. Div. 2015) (alterations in original) (emphasis
omitted) (quoting State v. Kates, 426 N.J. Super. 32, 42 n.4 (App. Div. 2012),
aff’d, 216 N.J. 393 (2014)).
3
The State agreed to dismiss the other count of the complaint, and defendant
agreed to plead guilty to driving while intoxicated at the time of sentencing.
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"to a term appropriate to a crime of one degree lower than that of the crime for
which defendant was convicted" as permitted under N.J.S.A. 2C:44-1(f)(2).
Defendant signed the written plea agreement which confirmed the nature
of the open plea. During the plea colloquy, defendant told the judge he
understood that the State would request a ten-year sentence and his own attorney
would ask for a sentence in the five- to ten-year range for second-degree
offenses. Defendant also confirmed that no one had promised him anything that
was not set forth in the plea agreement.
Following the plea hearing, defendant met with a probation officer and
completed the presentence report. Defendant told the officer that as he was
driving home from his mother's house, he rolled down the windows of his car
"and began playing music at a loud volume." He stated he was "urged on by the
music and wind" and "made the decision to accelerate on the road." Defendant
stated that the end of a seven-year relationship one month previously "cause[d]
[him] to no longer want to live." Defendant stated "that was on my mind when
I decided to accelerate. I wanted to die though, not anyone else . . . . I would
never intentionally put someone else's life in danger."
On July 16, 2020, the judge conducted a sentencing hearing. As set forth
in the plea agreement, the State argued for the imposition of a ten-year term for
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first-degree aggravated manslaughter, while defendant's attorney asked the
judge to sentence defendant to five years in prison. After considering counsel's
arguments, the judge found aggravating factors one, three, and nine, and
mitigating factors six, seven, eight, and nine. See N.J.S.A. 2C44-1(a) and (b).
After weighing each factor, the judge concluded they were in equipoise.
Therefore, the judge denied defendant's request that he be sentenced as if this
were a second-degree offense under N.J.S.A. 2C:44-1(f)(2).4 Accordingly, the
judge imposed the minimum sentence of ten years in prison for this first-degree
offense, subject to an eighty-five percent period of parole ineligibility under the
No Early Release Act, N.J.S.A. 2C:43-7.2, and five years of parole supervision
upon release.
Defendant thereafter filed a motion for reconsideration and reduction of
his sentence pursuant to Rule 3:21-10. Defendant alleged he thought he would
be sentenced to less than a ten-year term at the time he pled guilty. However,
defendant admitted at the October 15, 2020 motion hearing that his attorneys
told him there was a "best case" and "worst case scenario." Under the best case
4
In order to downgrade an offense for purposes of sentencing under N.J.S.A.
44-1(f)(2), the judge "must be 'clearly convinced' that the mitigating factors
'substantially' outweigh the aggravating ones, and second, the court must find
that the 'interest of justice' demands that the sentence be downgraded." State v.
Megargel, 143 N.J. 484, 504-05 (1996).
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scenario, the judge could sentence defendant to five years in prison. Under the
worst case scenario, the judge could impose a ten-year term. He also agreed
with the Assistant Prosecutor that entering the plea agreement "was a pretty
calculated move on [defendant's] part" because the State agreed to cap
defendant's sentencing exposure at ten years.
Because defendant was aware of the terms of his open plea and range of
sentences he could expect, the judge denied defendant's motion for a reduction
of his sentence. In his thorough written opinion, the judge also reviewed the
findings he previously made concerning the aggravating and mitigating factors,
and found no basis for disturbing them. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE PLEA BARGAIN "FAILED ONE OF ITS
ESSENTIAL PURPOSES, FAIRNESS," STATE v.
MARZOLF, 79 N.J. 167, 183 (1979), BECAUSE
DEFENDANT'S REASONABLE EXPECTATIONS
UNDER THE PLEA DEAL WERE THAT HE
WOULD BE SENTENCED TO LESS THAN [TEN]
YEARS. THEREFORE, A REMAND PURSUANT
TO STATE v. KOVACK, 91 N.J. 476 (1982), IS
ESSENTIAL.
POINT II
THIS COURT SHOULD REMAND FOR
RESENTENCING BECAUSE: (1) THE COURT'S
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FINDING OF AGGRAVATING FACTOR ONE WAS
DOUBLE COUNTING; (2) THE COURT
IMPROPERLY USED DEFENDANT'S
STATEMENTS IN THE [PRESENTENCE] REPORT
AGAINST HIM; AND (3) THE COURT'S FINDINGS
OF AGGRAVATING AND MITIGATING FACTORS
WERE NOT BASED ON COMPETENT,
REASONABLY CREDIBLE EVIDENCE IN THE
RECORD.
A. The Finding of Aggravating Factor One
Constituted Impermissible Double Counting
B. The Trial Court's Use of Defendant's Statements
in the [Presentence] Report to Punish Defendant
More Severely Was Unfair and Improper
C. The Trial Court's Findings of Aggravating and
Mitigating Factors Were Not "Grounded in
Competent, Reasonably Credible Evidence."
POINT III
THE RESENTENCING SHOULD APPLY THE
YOUTH MITIGATING FACTOR, "THE
DEFENDANT WAS UNDER 26 AT THE TIME OF
THE COMMISSION OF THE OFFENSE," N.J.S.A.
2C:44-l(b)(14), AND CONSIDER DEFENDANT'S
REHABILITATIVE EFFORTS PURSUANT TO
STATE v. RANDOLPH, 210 N.J. 330 (2012).
We find insufficient merit in these contentions to warrant extended
discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the
reasons expressed by the trial judge at the time of sentencing and in his written
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decision denying defendant's motion for a reduced sentence. We add the
following brief comments.
Contrary to defendant's arguments in Point I, the record reveals that the
terms of his open plea were placed on the record in clear terms that defendant
testified he understood. The judge made no promises to defendant, defense
counsel, or the State that he would impose a specific sentence under Rule 3:9-
3(c). Defendant was fully aware that although his attorney planned to argue for
a lesser sentence, the judge could impose the minimum ten-year term for first-
degree aggravated manslaughter. Thus, we discern no basis for disturbing
defendant's guilty plea or his sentence.
Although defendant now asserts that his attorney advised him it was likely
he would receive less than ten years, that is an issue that is germane only to the
effectiveness of that attorney during the plea negotiations. That issue is best
examined and resolved at the post-conviction relief stage. State v. Rambo, 401
N.J. Super. 506, 525 (App. Div. 2008) (citing State v. Preciose, 129 N.J. 451,
460 (1992)).
Defendant's challenge in Point II to the judge's sentencing determination
is equally unavailing. Trial judges have broad sentencing discretion as long as
the sentence is based on competent credible evidence and fits within the
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statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must
identify and consider "any relevant aggravating and mitigating factors" that "are
called to the court's attention[,]" and "explain how they arrived at a particular
sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon,
202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and
we therefore avoid substituting our judgment for the judgment of the trial court.
Id. at 65; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J.
334, 365 (1984).
We are satisfied the judge made findings of fact concerning aggravating
and mitigating factors that were based on competent and reasonably credible
evidence in the record, properly considered all of the information set forth in
defendant's presentence report, and applied the correct sentencing guidelines
enunciated in the Code, including the imposition of a ten-year term for this first-
degree offense. Accordingly, there is no reason for us to second-guess the
sentence.
Finally, defendant argues in Point III that if the matter is remanded for
resentencing, the trial court should apply mitigating factor fourteen, N.J.S.A.
2C:44-1(b)(14), which was not in effect at the time defendant was originally
sentenced. See State v. Randolph, 210 N.J. 330, 354 (2012) (stating that a
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resentencing judge "should view [the] defendant as he stands before the court
on that day"). However, we have upheld defendant's sentence and, therefore,
there will be no remand. 5
Affirmed.
5
We also note that the Supreme Court recently held that the new mitigating
factor fourteen has only prospective application in cases not involving a
resentencing. State v. Lane, 251 N.J. 84, 87-88 (2022).
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