STATE OF NEW JERSEY VS. CHRISTOPHER HALL (03-07-0677, PASSAIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1318-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER HALL,
Defendant-Appellant.
________________________
Submitted March 15, 2021 – Decided June 30, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 03-07-0677.
Christopher Hall, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Mark Niedziela, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from a September 4, 2019, Law Division order denying
his motion to correct an illegal sentence. He claims he was denied the right to
allocute at resentencing. He also claims his trial counsel rendered ineffective
assistance. Judge Miguel A. de la Carrera rejected those claims in a concise
written opinion. We affirm substantially for the reasons explained by Judge de
la Carrera.
In 2004, defendant was convicted at trial for first-degree robbery, N.J.S.A.
2C:15-1 and 2C:2-6, second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b). At sentencing, the judge merged the first-degree
robbery and second-degree firearm convictions and imposed an extended term
of fifty-five years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2. The court imposed a separate five-year term on the conviction for unlawful
possession of a weapon and ordered that sentence to be served consecutively to
the sentence imposed on the armed robbery. On direct appeal, we affirmed
defendant's trial convictions but overturned the sentencing court's decision to
impose consecutive sentences. We remanded for the purpose of resentencing
defendant to serve concurrent sentences. State v. Hall, No. A-2652-05 (App.
Div. April 24, 2008).
On June 12, 2008, defendant was resentenced in accordance with our
remand instructions to an aggregate fifty-five-year prison term subject to NERA.
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The Supreme Court denied defendant's petition for certification. State v. Hall,
196 N.J. 343 (2008). In September 2008, defendant filed a petition for post -
conviction relief (PCR). That petition was denied on January 23, 2009.
On August 24, 2019—eleven years after he was resentenced—defendant
filed the present motion to correct an illegal sentence. Defendant raises the
following contentions for our consideration:
POINT I
THE LAW DIVISION JUDGE FAILED TO AFFORD
APPELLANT THE RIGHT TO ALLOCATION
BEFORE A NEW SENTENCING TERM WAS
IMPOSED IN VIOLATION OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION
POINT II
APPELLANT'S RIGHT TO DIRECT APPEAL WAS
DENIED DUE TO INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL, FAILURE TO
COMMUNICATE WITH APPELLANT [AND]
DILIGENTLY REVIEW TRIAL AND SENTENCING
TRANSCRIPTS FOR ADEQUATE BRIEFING,
APPELLANT WAS DEPRIVED OF A
GUARANTEED RIGHT TO COUNSEL IN
VIOLATION OF BOTH FEDERAL [AND] STATE
CONSTITUTIONS.
Rule 3:21-4(b) provides, in pertinent part, that "[b]efore imposing
sentence the court shall address the defendant personally and ask the defendant
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if he or she wishes to make a statement in his or her own behalf and to present
any information in mitigation of punishment." In State v. Jones, our Supreme
Court stressed that a deprivation of the right to allocute pursuant to Rule 3:21-
4(b) is structural error, requiring a remand without regard to whether there had
been a showing of prejudice. 232 N.J. 308, 318–19 (2018).
Defendant does not dispute—and the record clearly shows—he was
accorded the right of allocution at his initial sentencing hearing, at which time
he personally addressed the court. The narrow issue before us is whether
defendant had a right to personally address the resentencing court on remand.
We hold that in the particular circumstances of this case, given the nature and
reason for the remand proceeding, defendant did not have a right to make a
personal statement to the resentencing judge.
In defendant's initial appeal, we agreed with his sentencing argument,
holding,
in imposing consecutive terms, the sentencing judge
relied on some of the same factors that the Legislature
invoked to establish the elevated degree of the crime as
well as the enhanced nature of the Graves Act sentence.
As noted, the presence of the handgun raised
defendant's conviction from a second-degree crime to a
first-degree offense, N.J.S.A. 2C:15-1(b), and formed
the basis for the Graves Act extended-term sentencing.
N.J.S.A. 2C:43-6(c). As such, a consecutive sentence
for possessing a firearm without a permit would amount
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to double counting of an aggravating factor.
Accordingly, Yarbough[1] factor 4 also weighs in favor
of a concurrent sentence. In sum, the clear weight of
Yarbough factors, both qualitatively and quantitatively,
favor imposition of concurrent terms and the court's
decision to the contrary is a mistaken exercise of
discretion. The matter is remanded for resentencing
....
[State v. Hall (slip op. at 35).]
We do not believe defendant was entitled under Rule 3:21-4(b) to a second
allocution at resentencing when, as in this instance, the sole purpose of the
resentencing proceeding on remand was to make the previously-imposed prison
terms run concurrently rather than consecutively. The court on remand dutifully
amended the original sentence in accordance with our instructions. See
Tomaino v. Burman, 364 N.J. Super. 224, 232–33 (App. Div. 2003) (recognizing
"it is the peremptory duty of the trial court, on remand, to obey the mandate of
the appellate tribunal precisely as it is written") (quoting Jersey City
Redevelopment Agency v. The Mack Props. Co. No. 3, 280 N.J. Super. 553, 562
(App. Div. 1995)). Our remand instructions left no room for the resentencing
court to exercise discretion. Accordingly, there was no need for a new round of
allocution.
1
State v. Yarbough, 100 N.J. 627 (1985).
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To the extent we have not specifically addressed them, any additional
arguments defendant raises concerning the sentence lack sufficient merit to
warrant discussion in this opinion. R. 2:11-3(e)(2).
We likewise reject defendant's newly-minted contention that his counsel
rendered ineffective assistance. As Judge de la Carrera correctly noted, this
contention was improperly raised in defendant's motion to correct an illegal
sentence and should have been raised in the petition for PCR defendant filed in
September 2008. We note that Rule 3:22-4 imposes limits on when a second or
subsequent PCR petition may be filed. Rule 3:22-12 also imposes time limits
on when initial and subsequent PCR petitions may be filed. Defendant's
submissions in support of the present motion to correct an illegal sentence do
not address these procedural limitations.
Affirmed.
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