STATE OF NEW JERSEY VS. IRONE WATFORD (94-06-0904, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )


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  •                                      RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE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-0005-18T3
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    IRONE WATFORD, a/k/a TYRONE
    WATFORD, and IRONE WETFORD,
    Defendant-Appellant.
    _______________________________
    Submitted September 9, 2019 – Decided September 16, 2019
    Before Judges Geiger and Natali.
    On appeal from the Superior Court of New Jersey,
    Law Division, Hudson County, Indictment No. 94-06-
    0904.
    Irone Watford, appellant pro se.
    Esther Suarez, Hudson County Prosecutor, attorney
    for respondent (Stephanie Davis Elson, Assistant
    Prosecutor, on the brief).
    PER CURIAM
    Defendant Irone Watford appeals from a Criminal Part order denying his
    motion to correct an illegal sentence. We affirm.
    We briefly recount the lengthy procedural history of this case. Arising
    out of a November 4, 1993 incident in Jersey City, defendant was charged in a
    ten-count indictment with armed robbery, N.J.S.A. 2C:15-1; robbery, N.J.S.A.
    2C:15-1; carjacking, N.J.S.A. 2C:15-2; kidnapping, 2C:13-1(b); aggravated
    sexual assault, N.J.S.A. 2C:14-2(a)(3); aggravated sexual assault, N.J.S.A.
    2C:14-2(a)(4); sexual assault, N.J.S.A. 2C:14-2(c)(1); criminal sexual contact,
    N.J.S.A. 2C:14-3(b); possession of a weapon for an unlawful purpose, N.J.S.A.
    2C:39-4(d); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
    Defendant was convicted of all ten counts following a jury trial in 1997.
    Defendant was over the age of twenty-one when he committed the crimes
    in 1993. He had previously been convicted of second-degree robbery in 1988
    and third-degree distribution of a controlled dangerous substance (CDS) within
    1000 feet of school property in 1991. He was over the age of eighteen when he
    committed the prior crimes. The State moved to sentence defendant to an
    extended term as a persistent offender pursuant to N.J.S.A. 2C:43-7 and N.J.S.A.
    2C:44-3(a). The trial court granted the motion. The court found defendant met
    A-0005-18T3
    2
    the statutory definition of a persistent offender and was eligible for discretionary
    extended sentencing.
    On September 22, 1997, after appropriate mergers of several counts,
    defendant was sentenced to an aggregate term of life plus eighty years
    imprisonment with a sixty-year parole disqualifier. 1 He was also sentenced to
    community supervision for life.
    We affirmed defendant's conviction and sentence on direct appeal. State
    v. Watford, No. A-1544-97 (App. Div. Mar. 31, 2000). The Supreme Court
    denied certification. State v. Watford, 
    165 N.J. 487
    (2000).
    In 2000, defendant filed his first petition for post-conviction relief (PCR),
    which was denied in January 2002. We affirmed the denial. State v. Watford,
    No. A-3753-01 (App. Div. June 16, 2003).             The Supreme Court denied
    certification. State v. Watford, 
    178 N.J. 34
    (2003).
    1
    For the first-degree aggravated sexual assault, defendant was sentenced to
    life imprisonment subject to parole ineligibility for twenty-five years. For the
    first-degree kidnapping, defendant was sentenced to a term of thirty years
    subject to parole ineligibility for fifteen years. For the first-degree carjacking,
    defendant was sentenced to a term of thirty years subject to parole ineligibility
    for ten years. For first-degree armed robbery, defendant was sentenced to a
    term of twenty years subject to parole ineligibility for ten years. The sentences
    ran consecutively. Each of the extended sentences were within the ranges set
    by N.J.S.A. 2C:43-7.
    A-0005-18T3
    3
    In April 2009, defendant filed his second PCR petition, also styled as a
    motion to correct an illegal sentence, which was denied in May 2009, and again
    in July 2009, without an evidentiary hearing. We affirmed the denial. State v.
    Watford, No. A-5737-08 (App. Div. May 5, 2010). The Supreme Court denied
    certification. State v. Watford, 
    205 N.J. 15
    (2010).
    In June 2012, defendant filed his third PCR petition. The trial court found
    no "good cause" to justify appointment of counsel "because this matter is
    procedurally barred under [Rule] 3:22-4" and alleged no "substantial issue of
    fact or law," and dismissed the petition. We affirmed the dismissal. State v.
    Watford, No. A-2219-12 (App. Div. Feb. 19, 2014). The Supreme Court denied
    certification. State v. Watford, 
    219 N.J. 629
    (2014).
    Defendant filed a motion to correct an illegal sentence in September 2015.
    We affirmed the denial of the motion on a sentencing calendar pursuant to Rule
    2:9-11, substantially for the reasons set forth in the trial court's January 29, 2016
    oral decision. State v. Watford, No. A-3561-15 (App. Div. Aug. 2, 2016). The
    Supreme Court denied certification. State v. Watford, 
    229 N.J. 8
    (2017).
    Defendant did not confine his attempts to overturn his conviction and
    sentence to proceedings in State court. He also filed two habeas corpus petitions
    in the United States District Court for the District of New Jersey. Both habeas
    A-0005-18T3
    4
    petitions were denied. Watford v. Bartkowski, Civ. Action No. 11-0319 (SDW)
    (D.N.J. July 14, 2011), certificate of appealability denied, C.A. No. 11–3082 (3d
    Cir. Oct. 3, 2011); Watford v. Hendricks, Civ. Action No. 04-1388 (SDW)
    (D.N.J. Apr. 27, 2007), certificate of appealability denied, C.A. No. 07–3203
    (3d Cir. Mar. 10, 2008). The United States Supreme Court denied certiorari.
    Watford v. Warren, 
    566 U.S. 909
    (2012); Watford v. Ricci, 
    556 U.S. 1171
    (2009).
    On April 6, 2017, defendant filed a second motion to correct an illegal
    sentence based on a challenge to the constitutionality of the persistent offender
    sentencing statute, N.J.S.A. 2C:44-3, which was denied on June 15, 2018.
    Defendant claimed the statute was unconstitutionally vague and deprived him of
    his right to due process and equal protection of the laws. This appeal followed.
    Defendant argues:
    THE TRIAL COURT ERRED BY DENYING
    APPELLANT'S MOTION CHALLENGING THE
    CONSTITUTIONALITY OF SUBSECTION (a) OF
    N.J.S.A. 2C:44-3 SINCE BOTH (N.J.S.A. 2C:43-7
    AND 2C:44-3(a)) ARE CLEARLY
    UNCONSTITUTIONAL ON ITS FACE AND AS
    APPLIED THE STATUTES VIOLATES THE
    CONSTITUTIONAL DUE PROCESS AND EQUAL
    PROTECTION RIGHTS OF A DEFENDANT.
    A-0005-18T3
    5
    Whether defendant's sentence is illegal or unconstitutional is "an issue of
    law subject to de novo review." State v. Drake, 
    444 N.J. Super. 265
    , 271 (App.
    Div. 2016) (citing State v. Pomianek, 
    221 N.J. 66
    , 80 (2015)).
    Although defendant's motion was filed more than nineteen years after he
    was sentenced, it is not time barred. The law imposes no time limit on a
    challenge to an illegal or unconstitutional sentence. State v. Acevedo, 
    205 N.J. 40
    , 47 n.4 (2011); R. 3:21-10(b)(5); R. 3:22-12. "A motion may be filed and an
    order may be entered at any time" to correct an illegal sentence. R. 3:21-
    10(b)(5); see State v. Schubert, 
    212 N.J. 295
    , 309 (2012).
    We first consider whether N.J.S.A. 2C:44-3(a) is facially vague. Criminal
    statutes that are impermissibly vague are unconstitutional.
    Clear and comprehensible legislation is a fundamental
    prerequisite of due process of law, especially where
    criminal responsibility is involved. Vague laws are
    unconstitutional . . . because unclear or
    incomprehensible legislation places both citizens and
    law enforcement officials in an untenable position.
    Vague laws deprive citizens of adequate notice of
    proscribed conduct, and fail to provide officials with
    guidelines sufficient to prevent arbitrary and erratic
    enforcement.
    [State v. Afanador, 
    134 N.J. 162
    , 170 (1993)
    (emphasis added) (quoting Town Tobacconist v.
    Kimmelman, 
    94 N.J. 85
    , 118 (1983)).]
    A-0005-18T3
    6
    "A law is void as a matter of due process if it is so vague that persons 'of
    common intelligence must necessarily guess at it meaning and differ as to its
    application.'" Town 
    Tobacconist, 94 N.J. at 118
    (quoting Connally v. Gen.
    Constr. Co., 
    269 U.S. 385
    , 391 (1926)).              Thus, a criminal statute is
    unconstitutionally vague and violates due process if it fails "to provide notice
    and warning to an individual that his or her conduct could subject that individual
    to criminal or quasi-criminal prosecution." State v. Hoffman, 
    149 N.J. 564
    , 581
    (1997) (citing Screws v. United States, 
    325 U.S. 91
    , 101-02 (1945)).
    Pursuant to N.J.S.A. 2C:44-3, "[t]he court may, upon application of the
    prosecuting attorney, sentence a person who has been convicted of a crime of
    the first, second or third degree to an extended term" if the person is found to be
    a persistent offender as defined by N.J.S.A. 2C:44-3(a). The statute provides
    the following definition of a persistent offender:
    A persistent offender is a person who at the time of
    the commission of the crime is 21 years of age or
    over, who has been previously convicted on at least
    two separate occasions of two crimes, committed at
    different times, when he was at least 18 years of age,
    if the latest in time of these crimes or the date of the
    defendant's last release from confinement, whichever
    is later, is within 10 years of the date of the crime for
    which the defendant is being sentenced.
    [N.J.S.A. 2C:44-3(a).]
    A-0005-18T3
    7
    The trial court correctly concluded defendant satisfied those criteria and was
    eligible for sentencing to extended terms. The sentencing ranges fo r extended
    terms are set forth in N.J.S.A. 2C:43-7.
    We find no merit in defendant's argument that N.J.S.A. 2C:44-3(a) is
    facially vague. The statute is neither unclear nor incomprehensible. The statute
    clearly and unambiguously defines the term "persistent offender." It provides
    citizens with adequate notice and warning that his or her conduct could subject
    them to the extended sentencing implications for persistent offenders. Persons
    of common intelligence would not guess at its meaning or differ as to its
    application.   The statute also provides officials with guidelines to prevent
    arbitrary and erratic enforcement.         Put simply, the statute is not
    unconstitutionally vague.
    We next address defendant's claim that only violent crimes should be
    considered by a sentencing court when evaluating a defendant's persistent
    offender status. We disagree. Nothing in the plain language of the statute or its
    legislative history supports that claim. On the contrary, persistent offender
    status can be based on convictions of any crimes of the first, second, or third
    degree if they occurred within the statute's time and age limitations. Had the
    A-0005-18T3
    8
    Legislature intended to limit sentencing as a persistent offender to only violent
    criminals it would have so stated. It did not. 2
    Indeed, the original proposed version of the Criminal Code required the
    court to find "an extended term is necessary for the protection of the public,"
    "[t]he reference to 'protection of the public' was not included in the final version
    of the statute." State v. Pierce, 
    188 N.J. 155
    , 164 (2006). The Court overturned
    the requirement that the sentencing court find the defendant's commitment for a
    discretionary extended term is necessary for the protection of the public imposed
    by State v. Dunbar, 
    108 N.J. 80
    , 90-91 (1987) and reaffirmed by State v.
    Pennington, 
    154 N.J. 344
    (1998). 
    Pierce, 188 N.J. at 158
    , 169-70.
    Defendant misconstrues the two-step process undertaken by a sentencing
    court when considering an application for an extended sentence. The sentencing
    court must first undertake an objective examination of the defendant's prior
    record of conviction and age at the time of those convictions, to determine
    whether it renders him or her statutorily eligible for extended-term sentencing.
    2
    In contrast, the so-called Three Strikes Law, N.J.S.A. 2C:43-7.1(a), requires
    two predicate convictions for any of the following violent offenses: murder,
    aggravated manslaughter, first-degree kidnapping, armed or violent sexual
    assault, robbery, or carjacking.
    A-0005-18T3
    9
    
    Id. at 162,
    168-69.3 Analysis of the nature of a defendant's prior convictions,
    including whether they were for violent offenses, "must be regarded as, separate
    and distinct from the court's determination" of statutory eligibility for an
    extended sentence, and is undertaken after eligibility is determined. 
    Id. at 168.
    Determination of eligibility for extended term sentencing does not involve
    assessing whether the defendant presents a risk to the public because his prior
    crimes were for violent offenses. "Consideration of the protection of the public
    takes place during [the second] phase of the sentencing process," when the court
    assesses "the aggravating and mitigating factors, including the deterrent need to
    protect the public," and determines the appropriate term within the extended
    term range. 
    Ibid. In sum, N.J.S.A.
    2C:43-7 and N.J.S.A. 2C:44-3(a) are not impermissibly
    vague or unconstitutional as applied. Defendant was not deprived of his right
    to due process or equal protection of the laws under either the United States
    Constitution or the New Jersey Constitution.
    3
    Similarly, determination of whether a defendant meets the requirements for a
    mandatory enhanced-term sentence is also "based on an objective
    determination—the existence of prior convictions." State v. Thomas, 
    188 N.J. 137
    , 151 (2006).
    A-0005-18T3
    10
    To the extent we have not addressed defendant's remaining arguments
    they are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
    Affirmed.
    A-0005-18T3
    11