STATE OF NEW JERSEY VS. MICHAEL E. MITCHELL (14-05-0525, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-3073-18
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    MICHAEL E. MITCHELL,
    a/k/a MICHAEL MITCHELL,
    Defendant-Appellant.
    __________________________
    Argued March 16, 2021 – Decided April 5, 2021
    Before Judges Haas and Mawla.
    On appeal from the Superior Court of New Jersey, Law
    Division, Middlesex County, Indictment No. 14-05-
    0525.
    Emma R. Moore, Assistant Deputy Public Defender,
    argued the cause for appellant (Joseph E. Krakora,
    Public Defender, attorney; Emma R. Moore, of counsel
    and on the briefs).
    Joie D. Piderit, Assistant Prosecutor, argued the cause
    for respondent (Yolanda Ciccone, Middlesex County
    Prosecutor, attorney; Joie D. Piderit, of counsel and on
    the brief).
    Appellant filed a pro se supplemental brief.
    PER CURIAM
    Defendant Michael Mitchell appeals from a November 2, 2018 order
    denying his motion to correct an illegal sentence and a January 23, 2019 order
    denying his motion for reconsideration. We affirm.
    We previously recounted the facts leading to defendant's conviction in
    State v. Mitchell, No. A-3259-15 (App. Div. Mar. 26, 2018) (slip op. at 3-7). In
    brief, on December 8 and 19, 2011, and January 5 and 12, 2012, co-defendants
    Mack Mitchell and Emendo Bowers robbed four cell phone stores in Middlesex
    County while defendant acted as their look-out and driver. Ibid.
    Defendant was charged in a twenty-count indictment, which included four
    counts of first-degree robbery, N.J.S.A. 2C:15-1. Mitchell, slip op. at 2-3. His
    co-defendants were also charged in the indictment. Ibid.
    [Defendant] was tried by a jury, which returned a guilty
    verdict for theft by unlawful taking (counts three, eight,
    and eighteen); conspiracy to commit robbery (counts
    seven and seventeen); possession of a weapon for
    unlawful purpose (counts ten and twenty); and first-
    degree robbery (count sixteen). [He] was found not
    guilty of counts one, two, five, and six. The jury was
    unable to reach a verdict on counts eleven, twelve, and
    fifteen, which the State dismissed.
    [Ibid.]
    A-3073-18
    2
    Defendant had two prior first-degree robbery convictions. Therefore,
    pursuant to N.J.S.A. 2C:43-7.1(a), he was eligible for life imprisonment without
    parole because he incurred a third first-degree robbery conviction.       At his
    sentencing, defense counsel argued the statute was inapplicable because
    defendant was the driver and did not commit the armed robbery, as was the case
    in his two prior convictions.      Counsel argued N.J.S.A. 2C:43-7.1(a) was
    inapplicable because it required the offenses to be "substantially equivalent" to
    one another.
    The sentencing judge disagreed and stated:
    There is no requirement anywhere in the statute
    or any case law that I could find that says [the] . . .
    actual conduct has to be similar.
    Our [L]egislature made accomplice liability . . .
    practically the same as the actual actor pointing the gun.
    If the . . . [L]egislature wanted to differentiate in terms
    of culpability and punishment . . . they've had years and
    years to do that, and they've never chosen to do so. So,
    this [c]ourt assumes . . . that the . . . [L]egislature's
    intent and the clear meaning of the law is that whether
    you're an accomplice out in a car or whether you're the
    guy in the store, it's first[-]degree armed robbery.
    The sentencing judge imposed a life sentence without parole, and defendant
    appealed from the conviction and the sentence.
    A-3073-18
    3
    On direct appeal, defense counsel raised arguments relating to the
    suppression of defendant's statement to police and the jury deliberations.
    Mitchell, slip op. at 10.    Defendant's supplemental pro se brief raised the
    following points:
    POINT I – [DEFENDANT] SUBMITS THAT HE
    SHOULD NOT HAVE RECEIVED A LIFE
    SENTENCE FOR THE JANUARY 12, 2012
    ROBBERY.
    POINT II – [DEFENDANT] SHOULD [NOT] (sic)
    RECEIVE A LIFE SENTENCE BECAUSE THIS
    CONVICTION     IS  NOT   SUBSTANTIALLY
    EQUIVALENT      TO   HIS   TWO   PRIOR
    CONVICTIONS.
    [Mitchell, slip op. at 11 (alterations in original).]
    We affirmed defendant's convictions and sentence. Mitchell, slip op. at
    25. Citing the sentencing judge's findings, we stated: "The sentencing court
    correctly analyzed defendant's prior convictions and correctly applied N.J.S.A.
    2C:43-7.1(a). Based on defendant's prior convictions for first-degree robbery,
    defendant must receive a term of life imprisonment." Ibid.
    Defendant filed a motion pursuant to Rule 3:21-10(b)(5) to correct an
    illegal sentence, which the motion judge heard in November 2018. Defense
    counsel argued "the sentence is illegal because [defendant] was convicted of
    robbery under an accomplice liability theory." In support of counsel's argument,
    A-3073-18
    4
    defendant explained "my argument was that being that I was convicted through
    the . . . accomplice liability [statute], which is [N.J.S.A.] 2C:2-6, that that doesn't
    fall under . . . one of the provisions of the life imprisonment statute." The motion
    judge made the following findings:
    On the first-degree robbery conviction
    [defendant] received a sentence of life in prison without
    parole, pursuant to N.J.S.A. 2C:43-7.1(a) because he
    had been convicted of first-degree robberies under
    N.J.S.A. 2C:15-1 on two prior occasions. . . .
    ....
    Presently before the [c]ourt is [defendant's]
    application contending that the sentence of life
    imprisonment should not be upheld because one of his
    convictions was on the theory of accomplice liability
    under [N.J.S.A.] 2C:2-6 and that [N.J.S.A.] 2C:2-6 is
    not one of the enumerated statutes that are set forth
    under the provision of [N.J.S.A.] 2C:43-7.1 which is a
    qualifying conviction for the imposition of a life
    sentence.
    Generally, the law of the case doctrine precludes
    a [c]ourt from reexamining an issue that's already been
    decided by the same [c]ourt or higher Appellate Court
    in the same case.
    In State [v.] Mitchell the Appellate Division . . .
    reviewed the sentencing [c]ourt's decision to impose a
    life sentence upon [defendant] and determined that the
    defendant had three first-degree robbery convictions,
    that the most recent one was his third, and that therefore
    he qualified for life imprisonment.
    A-3073-18
    5
    . . . And the Appellate Division indicated there's no
    requirement in the statute or case law that says that the
    actual conduct ha[s] to be similar.
    The Appellate Division found that the sentencing
    [c]ourt properly analyzed defendant's prior convictions
    and correctly applied [N.J.S.A.] 2C:43-7.1(a).
    This [c]ourt feels it is bound by the Appellate
    Division decision upholding [defendant's] life sentence
    in his case. And even if this [c]ourt was not bound by
    the Appellate Division decision . . . the [c]ourt finds
    that [defendant's] contention that he was convicted of
    armed robbery solely on the theory of accomplice
    liability under [N.J.S.A.] 2C:2-6 lacks merit.
    In fact, . . . the sentencing [c]ourt and the
    Appellate Division stated [defendant] was convicted
    o[f] armed robbery . . . under . . . [N.J.S.A.] 2C:15-1.
    The accomplice liability does count as a prior robbery
    conviction under [N.J.S.A.] 2C:15-1, which is a
    qualifying statute under the life imprisonment statute.
    The [c]ourt finds that he has, therefore, three
    robbery convictions and therefore subject to the
    mandatory life imprisonment of [N.J.S.A.] 2C:43-
    7.1(a). Therefore, this [c]ourt will deny his motion to
    correct an illegal sentence.
    On January 23, 2019, the motion judge denied defendant's motion for
    reconsideration.
    Defendant raises the following points on this appeal:
    POINT I – [DEFENDANT] COULD NOT HAVE
    BEEN CONVICTED OF FIRST-DEGREE ROBBERY
    ABSENT THE VICARIOUS LIABILITY CREATED
    A-3073-18
    6
    BY N.J.S.A. 2C:2-6(C). AS SUCH, HE WAS NOT
    CONVICTED "UNDER" N.J.S.A. 2C:15-1 AND NOT
    ELIGIBLE FOR A SENTENCE OF LIFE WITHOUT
    PAROLE.
    A.     Because of the Gravity of a Sentence of
    Life Without Parole, Courts Have Always
    Strictly Limited the Applicability of the "Three
    Strikes" Law.
    B.   [Defendant] Was Not and Could Not Have
    Been Convicted Under N.J.S.A. 2C:15-1 Alone.
    C.   Because He Was Not Convicted "Under"
    2C:15-1, [Defendant] Was Not Eligible for Life
    Without Parole.
    Defendant's reply brief raises the following points:
    POINT I. THE ISSUE CURRENTLY BEFORE
    THIS COURT HAS NOT YET BEEN LITIGATED
    AND CONCERNS AN ILLEGAL SENTENCE.
    THEREFORE, THIS COURT IS NOT BARRED
    FROM HEARING IT.
    A.    Defendant's Pro Se Brief on Direct Appeal
    Argued That The Three Strikes Law Was
    Inapplicable Because His Three Convictions
    Were Not Factually Similar To Each Other.
    B.    The Present Motion Turns On the Fact That
    the Statute of Conviction – the Accomplice
    Liability Statute – Is Not Among the Enumerated
    Statutes Eligible For Three-Strikes Sentencing.
    C.   Because the Two Issues Differ and
    Because Illegal Sentences Can Be Corrected At
    Any Time, the Motion Is Not Barred.
    A-3073-18
    7
    "[A] truly illegal sentence can be corrected at any time." State v. Zuber,
    
    442 N.J. Super. 611
    , 617 (App. Div. 2015), rev'd on other grounds, 
    227 N.J. 422
    (2017) (alteration in original) (internal citations and quotations omitted). "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 State v. Acevedo,
    
    205 N.J. 40
    , 45 (2011)). "Whether [a] defendant's sentence is unconstitutional
    is an issue of law subject to de novo review." Zuber, 442 N.J. Super. at 618
    (citing State v. Pomianek, 
    221 N.J. 66
    , 80 (2015)).
    At the outset, we note the law of the case doctrine does not apply because
    defendant did not raise the same argument in the prior appeal. As we noted,
    defendant's initial appeal challenged his sentence based on whether the
    sentencing judge "correctly analyzed defendant's prior convictions and correctly
    applied N.J.S.A. 2C:43-7.1(a)" to determine whether the first two robbery
    convictions were "substantially equivalent" to his third conviction as defined in
    that statute. Mitchell, slip op. at 25. Defendant's argument on the Rule 3:21-
    10(b)(5) motion was that the accomplice liability statute, N.J.S.A. 2C:2-6(c),
    was not included in N.J.S.A. 2C:43-7.1(a), and therefore defendant could not be
    sentenced to life imprisonment. Neither the sentencing judge nor we, on the
    initial appeal, adjudicated this issue.
    A-3073-18
    8
    Defendant argues his sentence of life imprisonment without parole under
    N.J.S.A. 2C:43-7.1(a) is illegal because he "did not perform the actions
    criminalized by any of the six statutes [enumerated in N.J.S.A. 2C:43-7.1(a)],
    but rather was convicted by way of a separate vicarious liability statute, N.J.S.A.
    2C:2-6." Defendant asserts "without the intervention of an additional statute
    [N.J.S.A. 2C:2-6], [he] could not have been convicted of robbery – let alone
    first-degree robbery" because he did not "inflict[] bodily injury or use[] force
    upon another; . . . threaten[] another with or purposely put[] him in fear of
    immediate bodily injury; or . . . commit[] or threaten[] immediately to commit
    any crime of the first or second degree." He argues he did not commit first -
    degree robbery because he did not, "in the course of committing the theft, . . .
    attempt[] to kill anyone, or purposely inflict[] or attempt[] to inflict serious
    bodily injury," nor was he "armed with, or use[] or threaten[] the immediate use
    of a deadly weapon." He asserts, because his co-defendants committed the
    robbery while he waited in the vehicle, "[h]e did not satisfy any of the four
    prongs of a first-degree robbery charge and therefore could not be 'convicted
    under'" N.J.S.A. 2C:15-1.
    Defendant urges us to strictly construe the words in N.J.S.A. 2C:43-7.1(a).
    He argues because N.J.S.A. 2C:43-7.1(a) states it applies only to individuals
    A-3073-18
    9
    convicted "under" certain crimes, including N.J.S.A. 2C:15-1, and not convicted
    "of" these crimes, those convicted of crimes under N.J.S.A. 2C:2-6 do not fall
    within the ambit of N.J.S.A. 2C:43-7.1(a).
    When we interpret a statute, "our task is to effectuate the legislative intent
    in light of the language used and the objects sought to be achieved." State v.
    Maguire, 
    84 N.J. 508
    , 514 (1980). "The best indicator of [the Legislature's]
    intent is the plain language chosen by the Legislature." State v. Frye, 
    217 N.J. 566
    , 575 (2014).
    It is axiomatic that a statute will not be construed to
    lead to absurd results. All rules of construction are
    subordinate to that obvious proposition. The rule that
    a penal statute should be strictly construed does not
    mean that a ridiculous result shall be reached because
    some ingenious path may be found to that end. Rather
    it means that a statute shall not be extended by tenuous
    interpretation beyond the fair meaning of its terms lest
    it be applied to persons or conduct beyond the
    contemplation of the Legislature. In part that rule also
    is designed to avoid surprise to the citizen who
    conscientiously seeks to stay within the law.
    [State v. Provenzano, 
    34 N.J. 318
    , 322 (1961).]
    "Yet another principle is the assumption that the Legislature is thoroughly
    conversant with its own legislation and the judicial construction of its statutes. "
    Brewer v. Porch, 
    53 N.J. 167
    , 174 (1969). "We assume that when the Legislature
    A-3073-18
    10
    drafts a statute, it avoids surplusage." Fraternal Ord. of Police, Newark Lodge
    No. 12 v. City of Newark, 
    244 N.J. 75
    , 99 (2020).
    N.J.S.A. 2C:43-7.1(a) states:
    A person convicted of a crime under any of the
    following: N.J.S.[A.] 2C:11-3 [murder]; subsection a.
    of N.J.S.[A.] 2C:11-4 [aggravated manslaughter]; a
    crime of the first degree under N.J.S.[A.] 2C:13-1
    [kidnapping], paragraphs (3) through (6) of subsection
    a. of N.J.S.[A.] 2C:14-2 [sexual assault]; N.J.S.[A.]
    2C:15-1 [robbery]; or . . . [N.J.S.A.] 2C:15-2
    [carjacking], who has been convicted of two or more
    crimes that were committed on prior and separate
    occasions, regardless of the dates of the convictions,
    under any of the foregoing sections or under any similar
    statute of the United States, this State, or any other state
    for a crime that is substantially equivalent to a crime
    under any of the foregoing sections, shall be sentenced
    to a term of life imprisonment by the court, with no
    eligibility for parole.
    [N.J.S.A. 2C:43-7.1(a).]
    Defendant was not convicted of N.J.S.A. 2C:2-6. Rather, N.J.S.A. 2C:2-
    6 was the means by which the jury found him liable and convicted him of first -
    degree robbery under N.J.S.A. 2C:15-1. Our Supreme Court long ago explained
    "[t]he distinction between principal and accomplice or aider and abettor has been
    abolished in our jurisdiction for purposes of indictment and punishment. " State
    v. Cooper, 
    10 N.J. 532
    , 568 (1952). Therefore, merely because defendant was
    the driver did not make him any less culpable of first-degree robbery than his
    A-3073-18
    11
    co-defendants. The Legislature is not required to engraft a theory of liability
    onto N.J.S.A. 2C:43-7.1(a) because it is unnecessary to achieve the intent of the
    statute and doing so would create surplusage.
    N.J.S.A. 2C:43-7.1(a) is unambiguous and clearly manifests the
    Legislature's intent to impose life without the possibility of parole for defendants
    with three first-degree robbery convictions. The plain language of the statute
    does not indicate a legislative intent to the limit the penalty to principals who
    commit the enumerated offenses while excluding their accomplices.
    Finally, and contrary to defendant's argument, because the statute is
    unambiguous, the doctrine of lenity does not apply. See State v. D.G.M., 
    439 N.J. Super. 630
    , 641 (App. Div. 2015). To the extent we have not addressed an
    argument raised by defendant, it is because it lacks sufficient merit to warrant
    discussion in a written opinion. R. 2:11-3(e)(2).
    Affirmed.
    A-3073-18
    12