STATE OF NEW JERSEY VS. SEAN MALCOLM (02-10-2257, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-3602-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN MALCOLM,
Defendant-Appellant.
_____________________________
Submitted January 28, 2019 – Decided May 17, 2019
Before Judges Sabatino and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 02-10-2257.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).
Esther Suarez, Hudson County Prosecutor, attorney
for respondent (Stephanie Davis Elson, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Sean Malcolm appeals from the Law Division order denying
his motion to correct an illegal sentence for the conviction of felony murder and
other related offenses. For the reasons that follow, we affirm.
We need not detail the procedural history, trial or post-trial litigation that
proceed this appeal, as they are fully detailed in our unpublished opinions
affirming defendant's conviction but reversing and remanding for resentencing,
and affirming the denial of defendant's petition for post-conviction relief (PCR).
State v. Malcolm, No. A-3186-04 (App. Div. May 22, 2007); State v. Malcolm,
No. A-3187-09 (July 24, 2012). A brief summary will suffice.
Following a four-week jury trial in 2003, defendant was found guilty of
felony murder, aggravated assault, burglary and related weapon offenses arising
from the shooting death of Carlos Phillips on May 7, 2002. After merger, he
was sentenced to an aggregate prison term of fifty years, subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2.
We affirmed defendant's conviction on appeal, but vacated his sentence
and remanded for re-sentencing.1 On remand, the trial court reduced defendant's
aggregate prison term from fifty years to thirty years subject to NERA.
1
Defendant's petition for certification was denied. State v. Malcolm, 192 N.J.
481 (2007).
A-3602-16T2
2
Defendant thereafter filed a petition for PCR alleging that he was deprived
of the effective assistance of trial and appellate counsel. The PCR judge rejected
the claim that the jury charges on accomplice liability and cross-racial
identification were flawed, and after an evidentiary hearing, she found that
counsel made a reasonable "strategic decision" not to call possible alibi
witnesses. In addition, the judge found defendant's testimony lacking credibility
to sustain any PCR claim.
We affirmed the denial of PCR, but remanded the matter, directing the
judge to address defendant's allegation that a juror was improperly influenced
to find him guilty. On remand, following an evidentiary hearing, a different
PCR judge entered an order denying relief based on the finding that there was
no evidence of misconduct. Defendant did not appeal that order.
This brings us to the current appeal from the denial of defendant's motion
to correct an illegal sentence, Rules 3:21-10(b)(4) and -10(6)(2). In the motion,
filed about three years after the denial of PCR, defendant contended that his
thirty-year NERA prison term was manifestly excessive, and that the trial court
failed to consider mitigating factors four, seven, nine, eleven and thirteen.
N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify
defendant's conduct); -1(b)(7) (no prior convictions or criminal history); -
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1(b)(9) (unlikely to commit another offense); -1(b)(11) (the imprisonment
would entail excessive hardship to defendant or his dependents); and -1(b)(13)
(substantially influenced by a more mature person than he). He also sought to
be released from prison under Rule 3:21-10(b)(2), due to diabetes, high blood
pressure and other health issues. Finding no legal error in his senten cing and no
medical basis for early release, the trial judge entered an order denying the
motion.2
Before us, defendant raises the following argument:
POINT I
DEFENDANT SHOULD BE RESENTENCED
BECAUSE HIS SENTENCE IS ILLEGAL, THE
RESENTENCING JUDGE FAILED TO CONSIDER
CERTAIN MITIGATING FACTORS, AND HE
SUFFERS CERTAIN MEDICAL INFIRMITIES
THAT ENTITLE HIM TO RELEASE UNDER
[RULE] 3:21-10(B)(2).
In his first argument, defendant asserts that his thirty-year NERA prison
term imposed upon resentencing for felony murder was "manifestly excessive,"
and "violated [his] constitutional right under Blakely v. Washington[, 542 U.S.
296 (2004)] and State v. Natale[,184 N.J. 458 (2005)]." He is incorrect.
2
A transcript of the judge's oral decision is unavailable because according to
the trial court the audiotape is missing.
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An illegal sentence is one that is contrary to the Code of Criminal Justice
or constitutional principles. State v. Acevedo, 205 N.J. 40, 45 (2011). N.J.S.A.
2C:11-3(b)(1) clearly provides, subject to certain exceptions not applicable here,
that the term of imprisonment for felony murder is either "a term of 30 years,
during which the person shall not be eligible for parole, or . . . a specific term
of years which shall be between 30 years and life imprisonment of which the
person shall serve 30 years before being eligible for parole." See also State v.
Scales, 231 N.J. Super. 336, 340 (App. Div. 1989) (holding that, as the result of
1982 amendments to the Criminal Code, "three alternative sentences for murder
could be imposed: (1) death; (2) a sentence of 30 years without parole; and (3)
a sentence between thirty years and life, with a 30-year term of parole
ineligibility."). Defendant's sentence comports with these requirements. Also,
the period of parole ineligibility that was imposed under NERA was appropriate
given that felony murder is an enumerated offense in N.J.S.A. 2C:43-7.2.
Additionally, none of the cases defendant cites in his brief support his
contention that his sentence was illegal. The United States Supreme Court ruled
in Blakely "that a sentence based on judicial [fact finding] that exceeds the
maximum sentence authorized by either a jury verdict or a defendant's
admissions at a plea hearing runs afoul of the Sixth Amendment right to trial by
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jury." Natale, 184 N.J. at 465-66 (citing Blakely, 542 U.S. at 304). Yet, "the
traditional discretionary power of a judge to sentence within the applicable
sentencing range authorized by the verdict or the defendant's guilty plea[]"
remains. Id. at 477 (citing Blakely, 542 U.S. at 307-08).
Adhering to the principles articulated in Blakely, our Supreme Court in
Natale held that,
[a]side from the exceptions for prior criminal
convictions and consent to judicial [fact finding], the
Sixth Amendment prohibits a judge from imposing a
sentence greater than that allowed by the jury verdict
or by the defendant's admissions at a plea hearing.
Those are the constitutional boundaries for the
exercise of a judge's discretion at sentencing.
[184 N.J. at 482.]
To curb violation of this guideline, the Court went on to state:
[the] best [way to] preserve the major elements of our
sentencing code and cause the least disruption to our
criminal justice system[ is to] eliminate[] the
presumptive terms. Without presumptive terms, the
"statutory maximum" authorized by the jury verdict or
the facts admitted by a defendant at his guilty plea is
the top of the sentencing range for the crime
charged[.]
Id. at 487.
Otherwise, "the sentencing process will remain essentially unchanged. Judges
will continue to determine whether credible evidence supports the finding of
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aggravating and mitigating factors and whether the aggravating or mitigating
factors preponderate." Id.Defendant's sentence does not conflict with Blakely nor Natale. No
presumptive sentencing was applied, there was a balancing of aggravating and
mitigating factors, and the sentence is within our sentencing guidelines.
Turning to defendant's argument that the motion judge was mistaken in
not considering various mitigating factors, it is likewise without merit. Those
arguments are not cognizable on a motion to correct an illegal sentence. See
Acevedo, 205 N.J at 47 (citation omitted). That stated, the resentencing judge
did consider mitigating factor seven. And, based upon our review of the record,
we agree with the State that the other mitigating factors asserted by defendant
do not apply. Even considering all of the mitigating factors defendant contends
apply, he makes no showing that these factors would support a reasonable
probability that his sentence would have been different if the minimum sentence
permitted by N.J.S.A. 2C:11-3(b)(1) was imposed.
In addition, defendant argues that he should be granted an early release
under Rule 3:21-10(b)(2) because he has "[h]ypertension, diabet[es,] . . .eye
disease, [n]europathy . . . , and kidney failure." We see no merit to this claim.
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Upon motion with supporting affidavits and such other documents and
papers, a court has the discretion to release a defendant from prison because of
an "illness or infirmity." R. 3:21-10(b)(2), -10(c); State v. Tumminello, 70 N.J.
187, 193 (1976). An inmate "must show that the medical services unavailable
at the prison would be not only beneficial and, in the case of therapy,
rehabilitative, but are essential to prevent further deterioration in his health."
State v. Priester, 99 N.J. 123, 135 (1985). Further, an inmate must show that
there has been a changed circumstance in health "since the time of the original
sentence." Id. at 136. In addition, "among other factors . . . deem[ed] relevant
to the determination of a[n] [early medical release] are the nature and severity
of the crime, the severity of the sentence, the criminal record of the defendant,
the risk to the public if the defendant is released, and the defendant's role in
bringing about his current state of health." Id. at 137.
Defendant has not presented any affidavit or documents supporting his
claim. In fact, he has been receiving medical care for his illnesses while
imprisoned and he has not established that imprisonment has caused his
condition to deteriorate or that the State is unable to address his medical needs.
We are also mindful of the seriousness of defendant's felony murder offense.
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Consequently, we see no abuse in discretion in denying defendant's motion. Of
course, defendant is free to refile his motion should his health situation change.
Finally, defendant contends that he should have been assigned counsel to
assist him under Rule 3:21-10(c) in his motion for early release. While, as noted,
there is no transcript of the trial judge's oral decision denying counsel, our
review of the record identifies no good cause, as required by Rule 3:21-10(c), to
assign counsel for defendant. Considering defendant may file another motion
for early release, and he is currently represented by the Office of the Public
Defender, he may seek the aid of counsel should he pursue early release due to
poor health.
Affirmed.
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