STATE OF NEW JERSEY VS. ADOLPHUS DOWNS (96-03-0324, 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NOT FOR PUBLICATION WITHOUT THE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-0065-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ADOLPHUS DOWNS,
Defendant-Appellant.
_______________________
Submitted September 23, 2021 – Decided October 12, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 96-03-0324.
Adolphus Downs, appellant pro se.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Adolphus Downs appeals from an August 13, 2019 order
denying his motion to correct an illegal sentence. We affirm.
In 1997, a jury convicted defendant of first-degree murder, N.J.S.A.
2C:11-3(a) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3)
(count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree
conspiracy, N.J.S.A. 2C:5-2 (count four); second-degree possession of a weapon
for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and third-degree
possession of a prohibited weapon, N.J.S.A. 2C:39-3(b) (count six).
Defendant's convictions arose from the shooting of Jose Rodriguez by Jermile
Omar Mayo with a sawed-off shotgun during an armed robbery carried out by
Mayo, defendant, and a juvenile.
Defendant was initially sentenced to an aggregate term of life
imprisonment subject to a thirty-two-year period of parole ineligibility.
However, we reversed the first-degree murder conviction, affirmed the
remaining convictions, and remanded for resentencing. State v. Downs, No. A-
4160-97 (App. Div. Jan. 19, 2000) (slip op. at 12). Defendant was then
sentenced to sixty years, subject to a thirty-year period of parole ineligibility on
count two, and a consecutive five-year term, subject to a two-year period of
parole ineligibility on count six, for an aggregate sentence of sixty-five years,
subject to a thirty-two-year period of parole ineligibility.
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In 2017, defendant filed his motion to correct an illegal sentence pursuant
to Rule 3:21-10(b), arguing the sentencing judge should have merged count six
with count three, rather than count two. The motion judge issued a written
opinion denying the motion and made the following findings:
It is clear [the sentencing judge] did not ignore the
merger doctrine, as he merged [c]ounts [four] and [five]
. . . into [c]ount [three], . . . and then [c]ount [three] into
[c]ount [two] . . . .
. . . Count [six], and . . . [c]ount [three], . . .
require proof that the other does not. Unlawful
Possession of a Prohibited Weapon requires the
elements (1) that the item in question is a prohibited
weapon as defined in N.J.S.A. 2C:39-3; and (2) that the
defendant knowingly possessed that weapon. Robbery,
as defined in N.J.S.A. 2C:15-1, on the other hand,
requires the elements that (1) the defendant was in the
course of committing a theft; (2) that while in the
course of committing that theft the defendant: (a)
knowingly inflicted bodily injury or used for[ce] upon
another; or (b) threatened another with or purposely put
him/her in fear of immediate bodily injury; or (c)
committed or threatened immediately to commit a
crime. . . .
Moreover, the legal concept of merger is based
on the principle that "an accused [who] has committed
only one offense cannot be punished as if for two."
State v. Davis, 68 N.J. 69, 77 (1975). In determining
whether sentences for separate offenses should be
served concurrently or consecutively, a sentencing
court should focus on the fairness of the overall
sentence. State v. Miller, 108 N.J. 112, 121 (1987).
The . . . [C]ourt also noted that "[t]he focus should be
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on the fairness of the overall sentence, and the
sentencing court should set forth in detail its reasons for
concluding that a particular sentence is warranted." Id.
at 122.
In the instant matter, [the sentencing judge]
detailed, rather extensively, his reasons as to why he
elected to run [c]ount [six] . . . and [c]ount [three] . . .
concurrently as opposed to consecutively. One of [the
j]udge['s] rationales was that he "did not detect ever a
statement or signal of remorse from the defendant." . . .
Moreover, [the sentencing judge] noted that "there were
a number of references in the trial that connected
[defendant] or put him in the presence and in the
company of . . . Mayo with this sawed-off shotgun."
. . . [The judge] . . . reason[ed] that "the presence of the
gun on this occasion certainly was not a surprise to
[defendant], although I recognize that it was . . . Mayo's
gun and never alleged to be [defendant's] gun." . . . In
highlighting the above, [the judge] underlined that he
took such realities "into account when [he] structured
the sentence on the possession of the gun charge." . . .
Additionally, the State cites to case law that per
se criminalizes the possession of, among other
weapons, a sawed-off shotgun, unless the possessor can
demonstrate an "explainable lawful purpose." State v.
Montalvo, 229 N.J. 300, 316 (2017) (citing N.J.S.A.
2C:39-3). The [d]efendant has not posited any such
explanation. This, however, is only one of the three
possessory weapons offenses that New Jersey outlines.
[Ibid.]
. . . Although possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-5(d), calls for an
inquiry into the intent of the possessor of a weapon,
intent is not an element of unlawful possession of a
weapon. Therefore, the proper inquiry under N.J.S.A.
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2C:39-5(d) is not one of intent, but whether the
circumstances surrounding the possession were
manifestly appropriate for lawful use. . . . Here, the
circumstances surrounding the possession of the sawed-
off shotgun do not connote any such lawful use.
....
. . . [T]he essence of the charge of unlawful
possession of a weapon is the failure to possess a permit
or possession of a weapon that is per se illegal, whereas
the essence of a weapon for an unlawful purpose is the
possession of a weapon with the intent to use it in an
unlawful manner. State v. Cooper, [2]11 N.J. Super. 1,
22-23 (App. Div. 1986). The [d]efendant's possession,
actual or constructive, of a sawed-off shotgun, in and
of itself — irrespective of the illegal purpose, is
sufficient to satisfy the crux of the charge because of
the per se illegality of the specific weapon.
Defendant raises the following point on this appeal:
POINT ONE – BECAUSE THE TRIAL COURT
ERRED BY DENYING DEFENDANT'S R[ULE] 3:21-
10(b)(5) MOTION TO CORRECT AN ILLEGAL
SENTENCE, AND AN OPPORTUNITY FOR ORAL
ARGUMENT, THE ORDER DENYING RELIEF
SHOULD BE REVERSED AND REMANDED FOR A
HEARING ON DEFENDANT'S CLAIM.
"[A] truly 'illegal' sentence can be corrected 'at any time.'" State v.
Acevedo, 205 N.J. 40, 47 n.4 (2011) (quoting R. 3:21-10(b)(5)). "A sentence is
illegal if it . . . is 'not imposed in accordance with law' . . . ." State v. Locane,
454 N.J. Super. 98, 117 (App. Div. 2018) (quoting Acevedo, 205 N.J. at 45).
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The constitutionality of a defendant's sentence is reviewed de novo. State v.
Pomianek, 221 N.J. 66, 80 (2015).
Defendant argues the motion judge erred by denying the motion without
oral argument or an evidentiary hearing and failing to appoint defense counsel.
He asserts his sentence is illegal because the sentencing judge "failed to heed
the guidance provided by the Appellate Division for resentencing" and failed to
merge count six with count three.
Having considered defendant's arguments in light of the record and our de
novo review, we affirm substantially for the reasons set forth in the motion
judge's opinion. We add the following comments.
We reject defendant's contention the lack of oral argument or failure to
appoint counsel warrant reversal. There is no indication defendant sought oral
argument or the appointment of counsel because defendant has not attached a
copy of his motion. See R. 2:6-1(a)(1)(I) (appellant's appendix must include
those portions of the record "essential to the proper consideration of the
issues, . . .").
Moreover, Rule 3:21-10(c) states "upon a showing of good cause, the
court may assign the Office of the Public Defender to represent the defendant"
in a motion filed pursuant to Rule 3:21-10. Even if defendant requested counsel,
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we are unconvinced there was a showing of good cause to warrant granting his
request for counsel because defendant's arguments for revisiting his sentence
lacked merit. See R. 2:11-3(e)(2).
We are likewise unpersuaded an evidentiary hearing was necessary. "A
hearing need not be conducted on a motion filed under paragraph (b) hereof
unless the court, after review of the material submitted with the motion papers,
concludes that a hearing is required in the interest of justice." R. 3:21-10(c).
The judge was not required to hold a hearing because the motion raised a
question readily adjudicated by a review of the sentencing transcript and the
statutes governing defendant's convictions.
As the motion judge noted, there were no grounds for merging counts six
and three. An evidentiary hearing would not have shed further light on this
issue. Finally, we note a "defendant's contentions regarding consecutive
sentences or the absence of reasons for imposition of the consecutive sentences
do not relate to the issue of sentence 'legality' and are not cognizable . . . under
. . . Rule 3:21-10(b)(5) . . . ." Acevedo, 205 N.J. at 47.
Affirmed.
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