State of New Jersey v. Chris A. Benton ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1730-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRIS A. BENTON, a/k/a
CRAIG MCCUTCHEN,
SAMUEL MCCUTCHEN,
KEITH HOWARD,
CARL ANDERSON, and
CHRIS BENTON,
Defendant-Appellant.
________________________
Argued November 8, 2023 – Decided February 15, 2024
Before Judges Haas and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 18-08-
1151 and Accusation No. 21-07-0645.
Lucas B. Slevin, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Elizabeth Cheryl Jarit,
Deputy Public Defender, of counsel and on the briefs).
Randolph E. Mershon III, Assistant Prosecutor, argued
the cause for respondent (Yolanda Ciccone, Middlesex
County Prosecutor, attorney; Erin M. Campbell,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Following the denial of his motion to suppress, defendant Chris A. Benton
pled guilty to three counts of third-degree possession of a controlled dangerous
substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3), and was
sentenced consistent with his negotiated plea to a 364-day custodial term with
four years of probation. He appeals from the decision denying his suppression
application, his sentence, and the imposition of certain fines, and raises the
following issues for our consideration:
I. THE TRIAL COURT ERRED IN DENYING
THE MOTION TO SUPPRESS BECAUSE NO
PROBABLE CAUSE EXISTED TO REMOVE A
NON-DESCRIPT PILL BOTTLE FROM
DEFENDANT'S WAISTBAND, BECAUSE NO
PROBABLE CAUSE EXISTED TO SEARCH HIS
VEHICLE, AND BECAUSE THE INVENTORY
SEARCH COULD NOT APPLY AS DEFENDANT
WAS NEVER BOOKED AND JAILED.
A. THE POLICE LACKED PROBABLE CAUSE
TO REMOVE AN INNOCUOUS-LOOKING PILL
BOTTLE FROM MR. BENTON'S PANTS.
B. THE POLICE LACKED ANY
INDIVIDUALIZED OR PARTICULAR SUSPICION
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THAT MR. BENTON'S VEHICLE CONTAINED
EVIDENCE OF ANY CRIME.
C. THE SEARCH AT THE POLICE STATION
WAS NOT JUSTIFIED AS AN INVENTORY
SEARCH BECAUSE MR. BENTON WAS NEVER
BOOKED AND JAILED.
II. BECAUSE THE COURT FAILED TO
PROVIDE AN ADEQUATE STATEMENT OF
REASONS FOR SENTENCING AND CONSIDERED
DEFENDANT'S SUBSTANCE DEPENDENCY TO
ONLY FIND AGGRAVATING FACTORS,
RESENTENCING IS REQUIRED.
III. A REMAND FOR REASSESSMENT OF FINES
IS REQUIRED BECAUSE THE COURT
INCORRECTLY BELIEVED IT WAS REQUIRED
TO IMPOSE TWO DRUG ENFORCEMENT AND
DEMAND REDUCTION PENALTIES WHEN IT
HAD THE DISCRETION TO IMPOSE ONE. (Not
raised below)
We reject defendant's arguments in Point I and affirm his convictions. We
agree, in part, however, with his arguments in Points II and III, and accordingly
remand the matter with directions for the sentencing judge to articulate the
reasons for his sentencing decision and to address the propriety of imposing
multiple drug enforcement and demand reduction (DEDR) penalties.
I.
The events leading to defendant's arrest were described in detail at the
suppression hearing in which Detective Sean Freeman, a New Brunswick Police
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Officer with six years of experience with the New Brunswick Police
Department, and approximately nine years of law enforcement experience
overall, was the sole witness. The detective's training and experience included
the manner in which heroin and cocaine are packaged as well as the distribution
and sale of controlled dangerous substances generally.
Detective Freeman stated that during the afternoon of May 21, 2018, he
and Officers Monticello and Powers 1 of the New Brunswick Police Department
were patrolling a high-crime area in plainclothes and in an unmarked car as
members of the Street Crimes Unit. Detective Freeman testified he previously
made "[s]eventy, maybe [one] hundred" arrests in the area defendant was
arrested, and those arrests were of a "wide variety," but "mostly narcotics."
During their patrol, the officers observed defendant's vehicle "fail to come
to a complete stop at a stop sign and improperly use its turn signal ," and also
noticed the vehicle circle the block. Based on the aforementioned traffic
infractions, the officers decided to conduct a motor vehicle stop. Officer
Monticello approached the defendant who was driving the car, while Officer
Powers and Detective Freeman interacted with the passenger.
1
The record does not include the first names of Officers Monticello and Powers.
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When Officer Monticello asked defendant for his license and registration,
Detective Freeman testified he "fumbl[ed] through the paperwork and you could
. . . see his hands shaking." He also failed to make "direct eye contact with
Officer Monticello," repeated himself, and spoke in a low tone. Based on these
observations, Officer Monticello asked defendant to step out of the car, where
he was immediately directed to the rear of his vehicle to speak with Detective
Freeman, who observed defendant's "shirt tucked in, and a bulge." Detective
Freeman testified he attempted to discern the source of the bulge when he
noticed the "cap of pill bottle, a white cap . . . protruding from [defendant's]
underwear, between his shirt and underwear."
When he asked defendant what was in his waistband, he "immediately"
replied, "'[y]ou got me,' and began to reach for the pill bottle." At that point,
Detective Freeman told defendant to place his hands on his head and removed
the pill bottle. Detective Freeman testified the pill bottle was green tinted but
he "could clearly see through it," and observed it contained "several packets of
heroin and crack cocaine."
After Detective Freeman removed the green pill bottle, he immediately
observed and removed a second container, located in the same area as the first,
which he described as blue with a white lid and with markings from a local
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hospital that he could not see through. Detective Freeman testified defendant
was then formally placed under arrest, and a further search of defendant was
conducted incident to his arrest, which uncovered no further contraband.
The police also questioned the passenger of the vehicle, and after
confirming he had no active warrants, released him from the scene. According
to Detective Freeman, police then searched defendant's vehicle, because
"[defendant] exited the vehicle with that amount of narcotics on him, we
believed there would be more narcotics in the vehicle." That search revealed a
brown paper bag containing approximately "fifty packets" of heroin. Detective
Freeman stated the bag was either in a cup holder or on the floor of the vehicle
and acknowledged the bag was not in plain view.
Defendant was transported to police headquarters where he was
"processed," which according to Detective Freeman meant he was
"[f]ingerprint[ed], photographed, [] searched a second time . . . placed in a cell,
issue[d] a motor vehicle summons . . . and released on a summons complaint. "
This second search of defendant resulted in the seizure of $141 in assorted U.S.
currency. A later search of the green pill bottle revealed twenty-two packets of
heroin and five bags of crack cocaine and a search of the blue container revealed
120 packets of heroin and five packets of crack cocaine.
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Defendant moved to suppress the drugs located in the two pill bottles and
the heroin in the bag found in his car.2 The court denied defendant's application
in a March 4, 2019 written opinion. In its decision, the court found the officers
were justified in executing the motor vehicle stop because they observed
defendant commit multiple traffic violations. The court also concluded the
officers had probable cause to order defendant out of his vehicle, thus seizing
defendant, for their own safety, because defendant was "acting nervously and
fumbling with his paperwork . . . mumbling and speaking in a low tone while
avoiding eye contact with the officers."
The court rejected the State's argument the officers had probable cause to
arrest defendant based solely on their observations prior to defendant's removal
from the vehicle. The court stated, "it does not appear that probable cause
existed based only on the [d]efendant's nervousness and tone while inside the
vehicle," because the pill bottle was not "in plain view," until defendant was
asked out of the vehicle. The court found, however, "probable cause was
strengthened" after defendant said, "you got me," to Detective Freeman. At that
2
Before us defendant has not reprised his argument that his inculpatory
statement – "you got me" should be suppressed because he was not read his
Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). We
accordingly do not address those arguments and consider them waived.
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point, the court concluded, defendant's "presence in the high-crime area, his
nervousness, and the strange placement of the pill bottle (in the waistband of his
underwear)," made the officers' "suspicion that a crime was being committed
objectively reasonable."
The court found the arrest valid, prior to the search, "because of the
[d]efendant's nervous behavior and the presence of a pill bottle in his
waistband," and "[defendant's statement] tips the balance of reasonable
suspicion in the officers' favor, making the determination of probable cause
objectively reasonable." Because officers had the "right to arrest" defendant,
the court, relying on State v. O'Neal, 190 N.J. 601, 614 (2007), held it was
inconsequential the search occurred prior to defendant's incident to arrest.
The court also concluded the warrantless search of defendant's vehicle was
proper. Relying on State v. Witt, 223 N.J. 409, 447 (2015) and State v. Alston,
88 N.J. 211, 233 (1981), the court explained, under the automobile exception,
New Jersey courts "permit warrantless searches of (1) readily movable vehicles
when (2) the police officers have probable cause to believe that the vehicle
contains contraband or evidence of a crime and (3) the circumstances giving rise
to probable cause are unforeseeable and spontaneous."
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Applying this test, the court acknowledged the mere presence of drugs on
defendant did not "automatically create probable cause to search his vehicle,"
but concluded, here, "the amount of heroin and cocaine recovered from
[d]efendant's person—multiple bags of both narcotics—was reasonabl[y]
assumed not to be purely for personal use." As such, the court found the officers
had reason to believe more narcotics would be found in the vehicle, and
therefore established probable cause to conduct the search. Finally, the court
noted, as defendant did not contest the second search at the police station, it
would not suppress the $141.
In a nine-count indictment, defendant was charged with two counts of
possession of a CDS (counts one and five), possession of a CDS with intent to
distribute (counts two and six), possession of a CDS with intent to distribute
within 1,000 feet of a school (counts three and seven), and possession of a CDS
with intent to distribute within 500 feet of certain public property (count s four
and eight), and one count of financial facilitation of a crime (count nine). On
June 7, 2021, defendant pled guilty to two third-degree counts of possession of
a CDS with intent to distribute (counts two and six) and the remaining counts of
the indictment were dismissed.
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Defendant was later arrested on separate drug offenses, waived indictment
and was charged in Accusation No. 21-07-645-A with third-degree possession
of CDS with intent to distribute (count one); two counts of third-degree
possession of CDS (counts two and three); and third-degree conspiracy to
distribute CDS (count four). Defendant ultimately pled guilty to a single third-
degree count with regard to the accusation, with all remaining charges
dismissed. As a result, defendant entered guilty pleas to three counts of third-
degree possession of CDS with intent to distribute.
On October 12, 2021, the court sentenced defendant, consistent with his
plea, to two concurrent terms of four years' probation contingent on 364 days in
county jail. When sentencing defendant, the court found aggravating factors
three, "[t]he risk that the defendant will commit another offense," N.J.S.A.
2C:44-1(a)(3); six, "[t]he extent of the defendant's prior criminal record and the
seriousness of the offenses of which the defendant has been convicted," N.J.S.A.
2C:44-1(a)(6); and nine, "[t]he need for deterring the defendant and others from
violating the law," N.J.S.A. 2C:44-1(a)(9), outweighed the non-existent
mitigating factors. The court also imposed various penalties and fees, including
a $2,000 DEDR penalty. After issuing an amended Judgment of Conviction to
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correct the charge and degree listed for the conviction with respect to Accusation
No. 21-07-645-A, this appeal followed.
II.
In defendant's first point, he contends the motion court erred in denying
his suppression motion because officers lacked probable cause to remove the
non-descript pill bottle from defendant's waistband and to search his vehicle.
Specifically, in Point I.A., defendant, relying on Russell v. Coyle, 266 N.J.
Super. 651, 654 (App. Div. 1993), and authority from other jurisdictions, argues
Detective Freeman's observation of the top of a prescription pill bottle in
defendant's waistband did not create probable cause that the bottle contained
evidence of a crime.
Defendant also argues the court, in concluding the police had probable
cause to search him, improperly "relied heavily on his presence in a high crime
area as well [as] his nervous behavior and lack of eye contact during the motor
vehicle stop," citing to State v. Pineiro, 181 N.J. 13 (2009), State v. Nyema, 249
N.J. 509, 533 (2022), and State v. Goldsmith, 251 N.J. 384, 404 (2022).
Defendant specifically contends police failed to provide specific evidence of the
"high crime" area patrolled and failed to articulate the connection between
defendant's nervousness and any criminality.
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Defendant further asserts defendant's statement, "you got me," did not "tip
the balance" towards establishing probable cause, either with respect to
defendant's arrest or the seizure of the pill bottle. Defendant maintains at the
time of the statement, police only observed traffic violations and nervous
behavior in a high crime area, and there was nothing to indicate defendant was
involved in criminal activity or possessed contraband. Defendant claims his
statement was at best ambiguous, could have referred to the traffic stop, or, at
most, could have "aroused suspicion."
In Point I.B., defendant argues even if the seizure of the two pill bottles
was proper, police did not have probable cause, specific and individualized to
the vehicle, to conduct a warrantless search under the automobile exception.
Relying on State v. Chippero, 201 N.J. 14, 31 (2009), defendant asserts the
narcotics found in the pill bottles "does not automatically permit the search of
other constitutionally protected areas." Defendant maintains police failed to
articulate a basis to establish probable cause that contraband would be found
inside the vehicle, and thus engaged in an unlawful search. On this point,
defendant also relies on State v. Wilson, 178 N.J. 7, 15 (2003), for the
proposition the quantity of narcotics found on an individual does not, alone,
create probable cause for police to search a vehicle without a warrant.
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We disagree with all of these arguments and conclude that the court
correctly determined the officers possessed probable cause to conduct a
warrantless search of defendant and his vehicle. On this point, we affirm
therefore substantially for the reasons stated by the trial court in its
comprehensive written decision. We add only the following comments.
III.
Our review of a trial judge's decision on a motion to suppress is limited.
State v. Robinson, 200 N.J. 1, 15 (2009). In reviewing such an application, we
must uphold the judge's factual findings, "so long as those findings are supported
by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424,
440 (2013) (quoting Robinson, 200 N.J. at 15). "Those findings warrant
particular deference when they are 'substantially influenced by [the trial judge's]
opportunity to hear and see the witnesses and to have the "feel" of the case,
which a reviewing court cannot enjoy.'" Ibid. (alteration in original). We review
de novo the judge's pure determinations of law, State v. Mann, 203 N.J. 328,
337 (2010), as well as the application of legal principles to factual findings.
State v. Harris, 181 N.J. 391, 416 (2004).
"The Fourth Amendment of the United States Constitution and Article I,
Paragraph 7 of the New Jersey Constitution, in almost identical language,
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protect against unreasonable searches and seizures." State v. Smart, 253 N.J.
156, 164 (2023) (quoting Nyema, 249 N.J. at 527). "Warrantless seizures are
presumptively invalid as contrary to the United States and the New Jersey
Constitutions." Pineiro, 181 N.J. at 19.
"To justify a warrantless search or seizure, 'the State bears the burden of
proving by a preponderance of the evidence that [the] warrantless search or
seizure falls within one of the few well-delineated exceptions to the warrant
requirement.'" State v. Vanderee, 476 N.J. Super. 214, 230 (App. Div. 2023)
(quoting State v. Chisum, 236 N.J. 530, 546 (2019)). Each exception to the
warrant requirement has their own essential elements that must be satisfied to
justify a warrantless search. State v. Johnson, 476 N.J. Super. 1, 20 (App. Div.
2023).
One such exception to the warrant requirement is the search incident to
arrest, an exception "limned for two specific purposes—the protection of the
police and the preservation of evidence." State v. Eckel, 185 N.J. 523, 524
(2006). Under this exception to the warrant requirement, "an officer [has] the
right to search a defendant's person without a warrant if there is probable cause
to arrest." State v. Roman-Rosado, 462 N.J. Super. 183, 201 (App. Div. 2020).
A-1730-21
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In State v. O'Neal, our Supreme Court held that under the search-incident-
to-arrest doctrine, police may in certain circumstances conduct a search and
remove drugs before actually placing the suspect under arrest. 190 N.J. at 614.
The Court explained that when police search a person before arresting him or
her "as part of a single, uninterrupted transaction, it does not matter whether the
arrest precedes the search." Ibid. (quoting State v. Bell, 195 N.J. Super. 49, 58
(App. Div. 1984)). "It is the 'right to arrest,' rather than the actual arrest, that
'must pre-exist the search.'" Ibid. (quoting State v. Doyle, 42 N.J. 334, 342
(1964)).
Under the plain view exception, an officer may, without a warrant, "seize
evidence or contraband that is in plain view." State v. Gonzales, 227 N.J. 77,
90 (2016). To lawfully seize evidence or contraband under this exception, the
"officer must lawfully be in the area where he observed and seized the
incriminating item or contraband, and it must be immediately apparent that the
seized item is evidence of a crime." Id. at 101.
Pursuant to the automobile exception, our Supreme Court has long
recognized "under our State Constitution, 'when the police have probable cause
to believe that [a] vehicle contains contraband or evidence of an offense and the
circumstances giving rise to probable cause are unforeseeable and spontaneous,'
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law enforcement may search the vehicle without first obtaining a warrant." State
v. Cohen, 254 N.J. 308, 319-20 (2023) (alteration in original) (quoting Witt, 223
N.J. at 447).
"Whether in the arrest context or in a search context, it is the same
standard of proof that controls: probable cause." Chippero, 201 N.J. at 27. "In
assessing whether probable cause exists, 'courts must look to the totality of the
circumstances and view those circumstances . . . from the standpoint of an
objectively reasonable police officer.'" State v. Diaz, 470 N.J. Super. 495, 529
(App. Div. 2022) (quoting State v. Gibson, 218 N.J. 277, 293 (2014)). "[C]ourts
are to give weight to 'the officer's knowledge and experience' as well as 'rational
inferences that could be drawn from the facts objectively and reasonably viewed
in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998)
(quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)).
We initially note defendant does not dispute the propriety of the police
officers' actions in stopping his vehicle based on his undisputed motor vehicle
violations, or removing him from his car based on their observations of his
behavior when they asked him for routine credentialing information. Instead,
defendant narrows his constitutional arguments to events that occurred after he
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was at the rear of the vehicle, and argues the police conduct at that point violated
his Fourth Amendment rights. We therefore limit our discussion accordingly.
In applying the aforementioned substantive principles, we pay close
attention to the timing and requiring of the police officers' interaction with
defendant. Once at the rear of the vehicle, defendant was observed with a pill
bottle secreted in his waistband. When asked a simple question by Detective
Freeman about the pill bottle, defendant "immediately" offered the inculpatory
statement "you got me." We reject defendant's interpretation of that statement
as innocuous or possibly related to the motor vehicle stop as unmoored to the
record and specifically in the context under which the statement was made –
while defendant was at the rear of the vehicle and in response to specific inquiry
about the pill bottle.
The police action in seizing the pill bottle – while defendant was reaching
for his waistband was entirely proper, as was the seizure of the second pill bottle
hidden in the same peculiar location in defendant's waistband area. At the point
defendant was asked to place his hands above his head, the police had the right
to arrest him. Under the totality of the circumstances, which included Detective
Freeman's training combined with defendant's presence in a high-crime area, his
nervousness during their initial interaction, the location of the pill bottle, -
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partially secreted and partially in plain view -, and defendant's damning
inculpatory statement, the police had an objective belief that "an offense has
been or is being committed." State v. Torres, 253 N.J. 485, 503 (2023) (quoting
State v. Sims, 75 N.J. 337, 354 (1978)). Police also had the right to conduct a
search incident to arrest without the need for a warrant. That the seizure
occurred before the arrest is of moment under the circumstances as the court
correctly concluded, see O'Neal, 190 N.J. at 614, as the search was "part of a
single, uninterrupted transaction." Ibid.
Once the pill bottle was seized, and Detective Freeman observed multiple
types of controlled dangerous substances, along with a second secreted pill
bottle, the police clearly had probable cause to enter the vehicle under a totality
of the circumstances analysis. As noted, at that point police observed
defendant's unsettling behavior in the car, heard his inculpatory statement, and
discovered defendant was in possession of at least one pill bottle containing
multiple types of controlled dangerous substances. As the court recognized,
while an individual's possession of narcotics does not automatically create
probable cause to search a vehicle, significant additional facts existed here,
including two pill bottles placed in defendant's waistband, one of which
contained multiple drugs, which, together with the other circumstances of
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police's interaction with defendant, established probable cause sufficient to
search defendant's vehicle without a warrant. These facts, which were
spontaneous and unforeseeable, more than sufficiently established the
particularized belief the vehicle contained evidence of criminal activity.
Rodriguez, 459 N.J. Super. at 22.
IV.
In Point I.C., defendant argues the search at the police station which
revealed $141 was not justified as an inventory search because defendant was
not booked and jailed. Defendant notes an inventory search is an exception to
the general warrant requirement allowing police to search and inventory an
arrestee's belongings before the arrestee is jailed. Defendant states this
exception exists because police must hold an arrestee's belongings once an
arrestee is jailed. If an arrestee is not jailed, defendant argues, "the police are
not put in the position of becoming the bailee of the arrestee's property and the
rationale requiring the seizure of the property no longer exists." Here, defendant
contends he was wrongfully searched because he never jailed, and the $141
discovered should be suppressed. We find defendant's arguments of insufficient
merit to warrant extended discussion in a written opinion and provide the
following to amplify our decision. R. 2:11-3(e)(2).
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We first note defendant never moved to suppress the $141 seized at the
police station before the trial court. Because defendant did not raise this issue
we could choose not to address it as "[i]t is a well-settled principle that 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 'unless the questions so raised on appeal go to the jurisdiction of the
trial court or concern matters of great public interest.'" Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer,
58 N.J. Super. 542, 548 (App. Div. 1959)). Although neither exception applies,
we address defendant's arguments on the merits in the interest of completeness.
An exception to the Fourth Amendment warrant requirement is the
inventory search. State v. Hummel, 232 N.J. 196, 207 (2018). "Police may
search an arrestee without a warrant and inventory the property in the arrestee 's
possession before he or she is jailed." Id. at 208. An inventory search "is not
an independent legal concept but rather an incidental administrative step
following arrest and preceding incarceration." Illinois v. Lafayette, 462 U.S.
640, 645 (1983). Although administrative in nature, an inventory search, "is
still a search and must be reasonable under the circumstances to pass
constitutional muster." Hummel, 232 N.J. at 208.
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"[T]he propriety of an inventory search involves a two-step inquiry: (1)
whether the impoundment of the property is justified; and (2) whether the
inventory procedure was legal." Ibid. (citing State v. Mangold, 82 N.J. 575, 583
(1980)). "For there to be a lawful inventory search, there must be a lawful
impoundment," and if impoundment is justified, "[c]ourts need only analyze the
reasonableness of the inventory search." Ibid. With respect to the
reasonableness of the inventory search, courts will balance factors such as "the
scope of the search, the procedure used, and the availability of less intrusive
alternatives," to ensure the search is not "more intrusive than reasonably
necessary to respond to the protective functions which fostered its creation." Id.
at 208-09 (quoting Mangold, 82 N.J. at 584, 587).
Here, the search of defendant at the police station was lawful and
reasonable and consistent with Hummel. As Detective Freeman testified, after
his arrest at the scene, he was transported to the police station where he was
processed, meaning he was fingerprinted, searched, placed in a cell, issued a
summons, and ultimately released. Under those circumstances, the search and
inventorying of defendant's possession was entirely justified and consistent with
New Jersey law. Nothing in the record suggest the search was more intrusive
than necessary or beyond the scope of a permissible inventory search.
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V.
In Points II and III, defendant contends resentencing is required because
the sentencing court failed to provide an explanation of its finding aggravating
factors. Defendant also contends the sentencing court improperly weighed
defendant's history of substance abuse as the court only found aggravating
factors. He also maintains the sentencing judge erred in imposing two DEDR
fines, as the court incorrectly believed imposing multiple fines was mandatory
rather than discretionary.
We review defendant's sentence for abuse of discretion. State v. Pierce,
188 N.J. 155, 166 (2006). We affirm a sentence "unless (1) the sentencing
guidelines were violated; (2) the aggravating and mitigating factors found by the
sentencing court were not based upon competent and credible evidence in the
record; or (3) 'the application of the guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to shock the judicial conscience.'" State
v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth,
95 N.J. 334, 364-65 (1984)).
A sentencing court is obligated to examine the aggravating and mitigating
factors enumerated in N.J.S.A. 2C:44-1(a) and (b). Id. at 72. Each factor found
by the court must be relevant and supported by "competent, reasonably credible
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evidence." Ibid. (quoting Roth, 95 N.J. at 363). The court then must conduct a
qualitative balancing of the factors to determine the appropriate sentence. Id. at
72-73.
Here, the trial court provided no explanation for its conclusion that
aggravating factors three, six, and nine applied. Nor did the court explain its
finding that no mitigating factors, N.J.S.A. 2C:44-1(b), applied. Instead, after
reviewing and recounting the facts in the presentence report, and those
underlying defendant's arrests, the court's sole analysis is reflected in the
following conclusory comments:
In weighing the aggravating versus the mitigating
factors, I find the following aggravating factors apply:
3, the risk the [d]efendant will commit another offense;
6, the extent of the [d]efendant's prior criminal history;
and 9, the need for deterring the [d]efendant and others
from violating the law. I find no mitigating factors.
The aggravating factors substantially outweigh the
mitigating factors. However, this is a negotiated plea,
one which I can accept.
The absence of meaningful analysis in the trial court's sentencing decision
warrants further fact finding. That is so because to "facilitate meaningful
appellate review, trial judges must explain how they arrived at a particular
sentence." State v. Case, 220 N.J. 49, 65 (2014). "[T]he judge shall state reasons
for imposing [a] sentence including . . . the factual basis supporting a finding of
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particular aggravating or mitigating factors affecting sentence." R. 3:21-4(h).
A court's mere enumeration of aggravating factors is insufficient to survive
appellate review of a sentence. Case, 220 N.J. at 65, 68.
In addition, we agree with defendant the court's analysis in applying two
DEDR penalties was contrary to law. At sentencing, defendant's counsel
questioned the court's imposition of the fees, as reflected by the following
colloquy:
Counsel: Judge, why are there two -- deters on a one
case? A thousand for each –
Court: Two separate -- two separate counts.
Counsel: Well, Judge, I'm going to ask that you waive
one of them. I think it's in your discretion to do it --
Court: It's not. It's mandatory. If it is, show me the
case law, and I'll do it.
[(Emphasis added).]
Contrary to the court's statement, a defendant sentenced for more than one
drug offense is not subject to mandatory penalties for each offense. Instead, as
N.J.S.A. 2C:35-15 provides, a defendant sentenced for multiple drug offenses
"may, in the discretion of the court, be assessed a single penalty applicable to
the highest degree offense for which the person is convicted" if the court finds
imposing multiple penalties "would constitute a serious hardship that outweighs
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the need to deter" and the imposing a single penalty "would foster the
defendant's rehabilitation." N.J.S.A. 2C:35-15(a). As it is clear the court
mistakenly concluded it was without discretion to impose less than two $1,000
penalties, we remand for the court to address the propriety of multiple DEDR
penalties.
In sum, we affirm defendant's convictions and remand for a further
statement of reasons for the sentence imposed, including a meaningful
discussion of any applicable aggravating and mitigating factors and the basis for
imposing multiple DEDR penalties. We retain jurisdiction.
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