STATE OF NEW JERSEY VS. KERN DANGLADE (18-08-0635, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-5144-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KERN DANGLADE, a/k/a
RAM, KERN DANGLEDE,
and KERN DANGRADE,
Defendant-Appellant.
________________________
Argued September 28, 2021 – Decided October 26, 2021
Before Judges Messano and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 18-08-0635.
Candance Caruthers, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Candace
Caruthers, of counsel and on the briefs).
Valeria Dominquez, Deputy Attorney General, argued
the cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Valeria Dominquez, of
counsel and on the brief).
PER CURIAM
The Graves Act was enacted in response to the increase of violent crimes
committed in the State. State v. Nance, 228 N.J 378, 390 (2017) (quoting State
v. Des Marets, 92 N.J. 62, 68 (1983)). Under its terms, a defendant convicted
of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1),
"shall be sentenced to a term of imprisonment by the court[,] . . . [which] shall
include . . . a minimum term. The minimum term shall be fixed at one-half of
the sentence imposed by the court or [forty-two] months, whichever is greater
. . . during which the defendant shall be ineligible for parole." N.J.S.A. 2C:43-
6(c).
"To mitigate the undue severity that might accompany the otherwise
automatic application of the mandatory minimum sentence . . . , the Legislature
included [N.J.S.A. 2C:43-6.2], a limited exception that allows certain first-time
offenders to receive a reduced penalty if the imposition of a mandatory term
would not serve the interests of justice." State v. Benjamin, 228 N.J. 358, 368
(2017). In such circumstances, section 6.2 permits the prosecutor to move
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before the assignment judge to waive the statutory mandatory prison term and
minimum term of parole ineligibility.1
If the motion is granted, "the assignment judge shall place the defendant
on probation pursuant to [N.J.S.A. 2C:43-2(b)(2)] or reduce to one year the
mandatory term of imprisonment during which the defendant will be ineligible
for parole." Nance, 228 N.J. at 391–92 (quoting N.J.S.A. 2C:43-6.2). However,
"the presumption of incarceration prescribed by N.J.S.A. 2C:44-1(d)" still
applies to "the assignment judge's sentencing determination under section 6.2
for a first-degree or second-degree Graves Act offender." Id. at 395.
In this case, a Hudson County grand jury returned an indictment charging
defendant Kern Danglade with several crimes, including second-degree
unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b)(1). The
prosecutor moved before the criminal presiding judge (the designated judge) for
a waiver. Citing issues with "the strengths of the case" and "the interest of
justice[,]" the prosecutor stated the "proper" sentence would be "a [five] with a
[one]." The prosecutor asked the judge to "take [the case] out of Graves."
1
In 2008, the Administrative Office of the Courts issued a directive permitting
the assignment judge to delegate that authority to the presiding judge of the
Criminal Part. Nance, 228 N.J. at 392.
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The judge responded by asking, "And the offer is going to be [five] with
a [one]?" The prosecutor responded affirmatively, and, when the judge asked
defense counsel if he had anything to add, he responded, "No." The judge
granted the motion. 2
Later that same day, defendant, his attorney, and the prosecutor appeared
before a different judge, who accepted defendant's guilty plea and later
sentenced defendant (the sentencing judge). The prosecutor explained the terms
of the plea bargain, specifically, that defendant would plead guilty to the
unlawful possession of a handgun, with a sentence recommendation of five -
years' imprisonment with a one-year period of parole ineligibility. Defense
counsel stated, "[t]hat's our understanding . . . ."
Defendant told the sentencing judge that he understood the terms of the
plea bargain and provided a factual basis for his guilty plea. The sentencing
judge accepted defendant's guilty plea, finding it was entered "freely and
voluntarily."
At sentencing, defense counsel told the judge that defendant "certainly
st[ood] by his guilty plea." After referencing defendant's impending
incarceration, defense counsel continued:
2
Defendant's presence was not noted in the transcript.
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[Y]ou know with the gun laws there isn't much
discretion from Your Honor. I know five with a one[.]
I've gone over that with the family, it's the lowest round
it can go. And you know they're just very sad. Like I
said, he's a good guy. And you know he just want's
[sic] to put this behind him and get his time over as soon
as possible.
The sentencing judge then addressed the pertinent aggravating and
mitigating factors, finding aggravating factor nine (the need to deter), N.J.S.A.
2C:44-1(a)(9), mitigating factor seven (lack of criminal history), N.J.S.A.
2C:44-1(b)(7), and the non-statutory mitigating factor of "remorse," and the
mitigating factors outweighed the aggravating factor. The judge sentenced
defendant to a five-year term of imprisonment, subject to a one-year period of
parole ineligibility.3
3
Despite finding only one aggravating factor, the judgment of conviction (JOC)
reflects that the judge also found aggravating factor three (risk of re-offense).
The JOC additionally states that "[t]he aggravating factors preponderated over
the mitigating factors[,]" contrary to the sentencing transcript. It is well-
established that "[i]n the event of a discrepancy between the court's oral
pronouncement of sentence and the sentence described in the [JOC], the
sentencing transcript controls, and a corrective judgment is to be entered." State
v. Abril, 444 N.J. Super. 553, 564 (App. Div. 2016) (citing State v. Rivers, 252
N.J. Super. 142, 147 n.1 (App. Div. 1991)).
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Defendant's appeal was initially scheduled to be heard on our Excessive
Sentence Oral Argument calendar.4 We subsequently granted defendant's
motion to have the appeal transferred to a plenary calendar.
Before us, defendant raises the following argument for our consideration:
A RESENTENCING IS REQUIRED BECAUSE THE
ASSIGNMENT JUDGE'S N.J.S.A. 2C:43-6.2
DESIGNEE NEVER MADE THE SUBSTANTIVE
PROBATION-OR-PRISON SENTENCING
DECISION REQUIRED OF HER BY STATUTE,
AND ALSO DID NOT PERMIT ANY OF THE
PROCEDURAL PROTECTIONS INTRINSIC TO A
SENTENCING DECISION: GRANTING THE
DEFENDANT AN AUDIENCE, AFFORDING
[DEFENDANT] AN OPPORTUNITY TO
ALLOCUTE, CONSIDERING MITIGATING
FACTORS, AND REVIEWING A PRESENTENCE
REPORT.
In short, defendant contends the assignment judge, or his or her designee,
must choose the appropriate sentence — five years' imprisonment with one-year
of parole ineligibility or probation — at the time the State's motion is granted.
See Nance, 228 N.J. at 394 ("The plain language of section 6.2 reveals a clear
4
Before the ESOA panel, the parties agreed a remand was needed because, at
the time, it did not appear that there was a hearing on the State's application
under section 6.2, and to correct the JOC to accurately reflect the sentencing
court's findings of aggravating and mitigating factors. In fact, as already noted,
a hearing did occur in open court on the State's motion. The JOC in the appellate
record has not been corrected.
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legislative intent that the assignment judge, not the sentencing judge, has the
statutory authority to make such a determination." (citing N.J.S.A. 2C:43-6.2)).
He argues the sentencing judge only implements the choice already made. See
ibid. ("Nor does section 6.2 permit the sentencing court to choose between the
statutory alternatives . . . . The sentencing court's task is to devise a sentence
that comports with the assignment judge's ruling and the . . . provisions of the
Code." (citation omitted)). Further, the prosecutor's sentence recommendation
at the time of the motion is merely a recommendation, and not binding on the
assignment judge or designated judge. See id. at 397 ("[T]he assignment judge
or designee may accept the prosecutor's recommendation as to the appropriate
sentence, but is not bound by that recommendation." (citing N.J.S.A. 2C:43-
6.2)). We agree with defendant — these principles are clearly what the Nance
Court held.
Here, defendant argues that the presiding judge never made the choice
between the two sentencing alternatives in section 6.2. The State contends
otherwise. A fair reading of the transcript supports defendant's argument. After
asking the prosecutor if "five with one" was going to be the State's recommended
sentence, the judge only asked if defense counsel had anything to add, to which
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he replied, "No." The judge announced she was granting the motion, but said
nothing else.
However, had the designated judge made a decision in this case, defendant
also points to blank spaces left in the Nance Court's procedural paradigm, i.e.,
the assignment judge or designated judge chooses the appropriate sentence
under section 6.2 in granting the prosecutor's motion, and the sentencing judge
only "devise[s] a sentence that comports with" that choice and the Code. 228
N.J. at 394. For example, defendant was apparently not present in court when
the State's motion was granted, and, therefore, had no opportunity to allocute
before the designated judge was to choose the appropriate sentence. See R.
3:21-4(b) (requiring the defendant to be present at sentencing and for the court
to "address the defendant personally and ask the defendant if he or she wishes
to make a statement in his or her own behalf and to present any information in
mitigation of punishment").
Defendant also argues that the designated judge did not have the benefit
of a presentence investigation report (PSR) before deciding whether defendant
was a candidate for probation under section 6.2, or whether the prosecutor's
recommended sentence of imprisonment was appropriate. See R. 3:21-2(a)
("Before the imposition of a sentence or the granting of probation[,] court
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support staff shall make a presentence investigation in accordance with N.J.S.A.
2C:44-6 and report to the court."). Nor did the designated judge find and weigh
the aggravating and mitigating sentencing factors in deciding whether probation
was appropriate because a term of imprisonment "would be a serious injustice."
N.J.S.A. 2C:44-1(d).
It suffices to say that the Court's opinion in Nance does not address these
issues. Moreover, we note that when the State's motion is made in these
circumstances, and the assignment or designated judge is required by Nance to
decide which of section 6.2's alternative sentences is most appropriate, the
defendant has not yet pled guilty. In other words, all the procedures defendant
claims were lacking in this case — a PSR, the opportunity for a defendant to
allocute, and the finding and weighing of sentencing factors — usually never
occur until after a defendant has pled or is found guilty. During oral argument,
neither defense counsel nor the prosecutor provided us with a wholly satisfying
explanation of how the process envisioned by Nance should be effectuated given
the lack of a predicate guilty plea.
While defendant's arguments may demonstrate the need for greater clarity
on the subject, none of them were ever raised before the designated judge or the
sentencing judge. We refuse to consider them for the first time on appeal. State
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v. Witt, 223 N.J. 409, 419 (2015) ("For sound jurisprudential reasons, with few
exceptions, 'our appellate courts will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such a presentation
is available.'" (quoting State v. Robinson, 200 N.J. 1, 20 (2009))).
Furthermore, although the designated judge never truly decided what was
the appropriate sentence in this case, defendant never argued that probation was
an appropriate sentence, or that he should not be sentenced to a term of
imprisonment, notwithstanding the presumption of incarceration prescribed by
N.J.S.A. 2C:44-1(d). Indeed, at sentencing — which followed defendant's guilty
plea, the preparation of a PSR, and defendant's allocution — defendant never
argued that the designated judge left open the possibility that probation was an
appropriate sentence under section 6.2. Under this unique statutory scheme,
where once the State's motion was granted only two alternative dispositions
were possible, and having never done so throughout the proceedings in the Law
Division, defendant waived any claim that the process was flawed and probation
was appropriate. See State v. Williams, 219 N.J. 89, 101 (2014) (declining to
address the merits of the defendant's Confrontation Clause arguments because
he failed to raise or preserve the claim at the trial level).
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Affirmed. We remand only for the judge to correct the JOC to comply
with his findings and statements at the time he imposed sentence. We do not
retain jurisdiction.
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