STATE OF NEW JERSEY VS. TYRONE JACKSON (13-04-0220, SOMERSET COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-0208-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TYRONE JACKSON,
Defendant-Appellant.
___________________________
Submitted October 31, 2018 – Decided November 30, 2018
Before Judges Fuentes and Accurso.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 13-04-
0220.
Joseph E. Krakora, Public Defender, attorney for
appellant (Marcia H. Blum, Assistant Deputy Public
Defender, of counsel and on the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Alexander C. Mech, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Tyrone Jackson appeals from a seven-year discretionary
extended term sentence not requested by the State, but imposed by the judge
after defendant failed to appear for sentencing. The law is clear that a
discretionary extended term for a persistent offender may not be imposed
absent application by the prosecutor. See State v. Thomas, 195 N.J. 431, 436
(2008). Furthermore, a sentence based entirely upon a defendant's failure to
appear for sentencing is illegal. See State v. Wilson, 206 N.J. Super. 182, 184
(App. Div. 1985). Accordingly, we reverse and remand for resentencing in
accordance with the plea agreement.
Following his indictment on charges of second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) and third- and fourth-degree assault by auto,
N.J.S.A. 2C:12-1(c)(1) and (2), defendant pleaded guilty in August 2015 to the
two lesser charges in exchange for the State's agreement not to seek a
discretionary extended term, N.J.S.A. 2C:44-3(a), and to recommend five-year
sentences to be served concurrently in the event the convictions did not merge
for sentencing purposes. 1 Defendant's sentencing was delayed almost eight
months, at his request, to allow him to engage in in-patient drug treatment.
1
Defendant was driving on a suspended license and reportedly under the
influence of heroin when he ran into the back of a motorcyclist, ejecting him
(continued)
A-0208-17T1
2
When the case was finally scheduled for sentencing in April 2016,
defendant failed to appear. A bench warrant was issued, and, in June 2017, he
turned himself in. At his sentencing a few days later, the State and defendant
asked the court to sentence defendant in accordance with the plea agreement,
noting he spent at least five months in in-patient drug treatment. Commenting
that defendant had been "in the wind" for a year, the trial judge refused,
stating:
Somebody, please, let's bring him out milk and
cookies for turning himself in after being absent for
two years.
The original plea agreement is five. He's going
to get seven. He can withdraw his plea or he can
accept the seven flat and we'll do a pretrial conference
today and we'll give him a new trial date.
(continued)
off the bike and causing him serious injuries. Originally indicted on only the
two third- and fourth-degree charges, defendant's application to drug court was
denied by the prosecutor. The Law Division overturned the decision o n April
1, 2013. The State did not appeal. Instead, it represented the case to the
Grand Jury two weeks before defendant's scheduled plea hearing in drug court
on April 29, obtaining a superseding indictment, which added the second-
degree aggravated assault charge. That charge made defendant ineligible for a
drug court sentence. See N.J.S.A. 2C:35-14(b)(2); N.J.S.A. 2C:43-7.2(d)(4).
Defendant pleaded guilty after another judge, the one whose sentence we
review here, denied his motion to dismiss the superseding indictment.
Defendant has not appealed from that motion order and it is thus not before us.
A-0208-17T1
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When the prosecutor objected because the victim "made it clear he does not
want to have to go through a trial on this," the judge replied:
Then I'll just sentence him to the seven. He has
an obligation to show up. He doesn’t show up. He's
bound by the plea agreement and . . . he's getting a
seven.
When defense counsel protested that defendant "pled to a third[-]degree. So
the maximum is a five," and asked that the plea agreement be honored, the
judge responded:
Not happening . . . . [T]his guy is not going to
thumb his nose at this court and just walk out with the
same deal he had what — two years ago . . . . I'll
vacate the plea agreement and he's back to a second
degree and I'll give him a 10. He goes to trial[,] I'll
give him a 10.
After the court permitted a recess to allow the prosecutor and defense
counsel to confer, defense counsel announced defendant wished to go forward
with his plea and sentencing. The judge outlined the choices for defendant; he
could receive "a flat seven, no stip, on an extended term basis," or the court
could "give him the five do two and a half." After putting those alternatives
on the record, the judge asked defense counsel: "what is your pleasure?"
Defense counsel responded that she and her client "understand that that is what
the court wishes to do." When the court asked whether defendant was "willing
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to accept and abide by it as opposed — as an alternative to my rejection of the
plea agreement," defense counsel responded affirmatively.
After asking defendant whether he had had adequate time to confer with
his counsel "so that you understand the choices you are making this morning
and the consequences of those choices," the judge explained to defendant that
it was his intention "to reject the plea agreement and go forward with a pretrial
conference, which would reinstate the second[-]degree first count." The judge
continued the colloquy as follows:
THE COURT: Instead, my alternatives are with
your permission and consent, to either sentence you to
a five flat with two and a half stipulated as a period of
parole ineligibility or seven flat.
Do you understand that?
DEFENDANT: Yes.
THE COURT: On a seven flat you are going to
be eligible for parole in about 18 months. As opposed
to a five do two and a half, you are eligible for parole
after 30 months.
Do you understand that?
DEFENDANT: Yeah.
THE COURT: So I am going to give you the
seven years flat, calling upon you to take
responsibility for the two years you were absent. Is
that what you would like me to do?
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DEFENDANT: Yes.
The judge thereafter merged defendant's convictions for sentencing
purposes, found aggravating factors N.J.S.A. 2C:44-1(a)(3), (6) and (9) and no
mitigating factors, without explanation, and sentenced defendant to seven
years in State prison "in the exercise of the court's discretion to impose an
extended term of imprisonment." The judge also imposed appropriate fines
and penalties and ordered defendant to pay $2750 in restitution, $2500 for the
victim's unreimbursed or deductible medical expenses and $250 in loss of
personal property. The judge also imposed fines, penalties and periods of
license suspension for driving while suspended and a first offense of driving
under the influence. Other Title 39 summonses issued to defendant were
dismissed in accordance with the plea agreement.
After imposing sentence, the judge addressed defendant as follows:
Mr. Jackson, despite your disappointment that I
am not going to sentence you to the five years
originally negotiated, you should find comfort in the
fact that your recklessness in operating this motor
vehicle caused serious bodily injury to a police officer
that was doing nothing other than doing his job.[2] So
believe me that I wouldn't have had a hesitation for a
New York minute or any reservation at all about drop
2
Although the record is clear the victim was a police officer, nothing suggests
he was on-duty at the time of the accident.
A-0208-17T1
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kicking you into the New Jersey State Prison for 10
years and on a second degree, if you are extended term
eligible, I would have probably been inclined to bump
that up to 15.
So you are walking out of here with a pretty
good result considering the fact that you engendered
the ire of this court by thumbing your nose at it for
two years.
But that's the two years I am adding to this
sentence. So you want to make sure you don't come
back before me.
Defendant appeals the sentence the court imposed, raising the following
arguments:
POINT I
THE SEVEN-YEAR DISCRETIONARY-
EXTENDED TERM IS ILLEGAL AND MUST BE
VACATED BECAUSE IT WAS IMPOSED
WITHOUT AN APPLICATION BY THE
PROSECUTOR, AND BECAUSE IT VIOLATES
THE FIVE-YEAR MAXIMUM TERM
NEGOTIATED UNDER THE PLEA AGREEMENT.
THE MATTER MUST BE REMANDED FOR A
NEW SENTENCING HEARING AT WHICH THE
COURT CONSIDERS WHAT SENTENCE TO
IMPOSE WITHIN THE NEGOTIATED FIVE-YEAR
MAXIMUM.
A. Discretionary-Extended Term May Only Be
Imposed if the State Applies for it, and the State
Did Not Apply for it.
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B. The Court Increased the Sentence Solely
Because Defendant Failed to Appear at
Sentencing Despite the Fact that the Plea
Agreement Was Not Conditioned on
Defendant's Appearance at Sentencing.
C. A Sentence May Not Be Increased Solely
Because the Defendant Did Not Appear for a
Court Date.
D. The Matter Must Be Remanded for a New
Sentencing Hearing at Which Defendant Is
Sentenced Within the Negotiated Range.
1. Additional reasons to preserve the plea.
2. The matter must be remanded for a new
hearing at which the sentence is based on
statutory sentencing factors and relevant
mitigation is not overlooked.
3. The matter must be remanded to a
different judge.
POINT II
THE MATTER MUST BE REMANDED FOR A
HEARING ON DEFENDANT'S ABILITY TO PAY
RESTITUTION.
As review of the quoted excerpts from the transcript makes plain, this
sentence cannot stand. It has long been established that a sentencing judge has
no power to impose a discretionary extended term absent a request from the
prosecutor. N.J.S.A. 2C:44-3(a); State v. Martin, 110 N.J. 10, 16 (1988).
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Nothing could be clearer. Here, not only did the prosecutor not request an
extended term, he explicitly promised defendant as part of the plea bargain that
he would not do so.
The plea agreement did not provide for an increased sentence for
defendant's non-appearance at sentencing; a provision the State was free to
negotiate. See State v. Subin, 222 N.J. Super. 227, 238-39 (App. Div. 1988).
Although we do not suggest a court could not reject a plea without such a term
when faced with a defendant who has failed, without excuse, to appear for
sentencing, see R. 3:9-3(e); Subin, 222 N.J. Super. at 239, "the authority to
exercise judicial discretion is not an arbitrary power of the individual judge, to
be exercised when, and as, his caprice, or passion, or partiality may dictate, or
forsooth as his vindictiveness or his idiosyncrasies may inspire," State v.
Madan, 366 N.J. Super. 98, 109 (App. Div. 2004) (quoting Smith v. Smith, 17
N.J. Super. 128, 132 (App. Div. 1951)).
In addition to the improperly imposed extended term, this sentence is
also illegal because based entirely upon the court's self-described "ire" at
defendant's failure to appear for sentencing. Wilson, 206 N.J. Super. at 184.
It would not appear to require repeating that "[t]he need for dispassionate,
evenhanded conduct is most acute in the sentencing phase of a criminal trial."
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State v. Tindell, 417 N.J. Super. 530, 571 (App. Div. 2011). Although we do
not condone defendant's failure to have appeared for sentencing, the judge
having permitted his feelings over what he perceived to be that personal
affront to overwhelm his application of the sentencing guidelines, we reverse
and remand for resentencing in accordance with the plea agreement.
As we understand the sentencing judge has retired, the case is assigned
to the presiding criminal judge in the vicinage to carry out the terms of the
remand, which should also include an assessment of defendant's ability to pay
restitution. See State v. Newman, 132 N.J. 159, 171-73 (1993). We do not
retain jurisdiction.
Reversed.
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