State of New Jersey v. Zaire R. Evans ( 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NOT FOR PUBLICATION WITHOUT THE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-3718-21
A-0298-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ZAIRE R. EVANS, a/k/a
DARRYL MILTON,
Defendant-Appellant.
_________________________
Argued January 10, 2024 – Decided February 12, 2024
Before Judges Vernoia and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 02-04-1288.
Troy A. Archie argued the cause for appellant (Afonso
Archie Law, PC, attorneys; Troy A. Archie, on the
briefs).
Rachel Maureen Lamb, Assistant Prosecutor, argued
the cause for respondent (Grace C. MacAulay, Camden
County Prosecutor, attorney; Rachel Maureen Lamb, of
counsel and on the brief).
PER CURIAM
These consolidated appeals involve unsuccessful attempts to correct a
clerical error in a judgment of conviction. Defendant Zaire Evans appeals from
a February 6, 2018 change of judgment of conviction, which had the effect of
reinstating an October 2, 2017 change of judgment of conviction, and a June 24,
2022 order denying his motion for reconsideration and modification of his
sentence. The motion judge denied the motion, finding a prior change of
judgment had been issued to correct typographical errors and that defendant's
sentence was not illegal. We agree and affirm but remand with a directive the
trial court issue a corrected judgment of conviction that accurately identifies the
statutory basis, N.J.S.A. 2C:39-5(b), of defendant's conviction for third-degree
unlawful possession of a weapon.
In connection with a May 4, 2001 shooting, a Camden County grand jury
returned an indictment charging defendant with first-degree murder, N.J.S.A.
2C:11-3(a)(1) or (2) (Count One); first-degree felony murder, N.J.S.A. 2C:11-
3(a)(3) (Count Two); second-degree burglary, N.J.S.A. 2C:18-2 (Count Three);
first-degree robbery, N.J.S.A. 2C:15-1 (Count Four); second-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Five); third-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Six); third-
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degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (Count Seven); and
second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7(b) (Count
Eight).
Before trial, the first-degree robbery charge (Count Four) was dismissed.
The trial judge handwrote the following on the first page of a copy of the
indictment:
Indictment Amended 9/16/03
• Robbery count dismissed
• Reference to robbery in Count 2 deleted
• Counts 5-6-7-8 renumbered as 4-5-6-7.
So ordered.
The judge placed his signature below that handwritten language and marked up
the copy of the indictment accordingly, crossing out the word "robbery" in Count
Two and renumbering Counts Five, Six, Seven, and Eight. The verdict sheet
submitted to the jury referenced the numbers of the counts of the indictment as
amended by that handwritten order, meaning Counts Five, Six, Seven, and Eight
were renumbered as Counts Four, Five, Six, and Seven, respectively.
A jury convicted defendant of aggravated manslaughter, N.J.S.A. 2C:11-
4(a)(1), as a lesser-included offense of first-degree murder (Count One); first-
degree felony murder, N.J.S.A. 2C:11-3(a)(3) (Count Two); second-degree
burglary, N.J.S.A. 2C:18-2 (Count Three); second-degree possession of a
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weapon for unlawful purpose, N.J.S.A. 2C:39-4(a) (renumbered as Count Four
on the verdict sheet); third-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(b) (renumbered as Count Five on the verdict sheet); third-degree
endangering an injured victim, N.J.S.A. 2C:12-1.2 (renumbered as Count Six on
the verdict sheet); and second-degree certain persons not to have a weapon,
N.J.S.A. 2C:39-7(b) (renumbered as Count Seven on the verdict sheet).
The trial judge imposed on defendant an aggregate term of imprisonment
of fifty years, with a thirty-five-year period of parole ineligibility. The judge
issued a written statement of reasons for the sentence, including a footnote in
which he referenced the pre-trial dismissal of the robbery count and the
subsequent renumbering of the original Counts Five through Eight. Referencing
the counts as they had been numbered on the verdict sheet, the judge merged the
conviction for possession of a weapon for unlawful purpose (Count Four on the
verdict sheet) with the aggravated-manslaughter conviction (Count One) and the
aggravated-manslaughter conviction (Count One) and burglary conviction
(Count Three) with the felony-murder conviction (Count Two) and imposed a
forty-year term of imprisonment with a thirty-year period of parole ineligibility
on the felony-murder conviction (Count Two), a five-year term of imprisonment
with a 2.5-year period of parole ineligibility on the unlawful-possession
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conviction (Count Five on the verdict sheet), a five-year term of imprisonment
with a 2.5-year period of parole ineligibility on the endangering conviction
(Count Six on the verdict sheet), and a ten-year term of imprisonment with a
five-year period of parole ineligibility for the certain-persons conviction (Count
Seven on the verdict sheet).
The judge directed that defendant would serve the sentences imposed for
the felony-murder conviction (Count Two) and the certain-persons conviction
(Count Seven on the verdict sheet) consecutively, the sentence imposed for the
unlawful-possession conviction (Count Five on the verdict sheet) concurrently
with the sentences imposed for the felony-murder conviction (Count Two) and
the certain-persons conviction (Count Seven on the verdict sheet), and the
sentence imposed for the endangering conviction (Count Six on the verdict
sheet) consecutively to the sentence imposed for the felony-murder conviction
(Count Two) and concurrently with the sentence imposed for the certain-persons
conviction (Count Seven on the verdict sheet).
The judge memorialized the convictions and sentences in a November 20,
2003 judgment of conviction (the First JOC). In the "final charges" section of
the First JOC, the judge referenced the counts using the numbers set forth in the
indictment. In another section, he described the sentences using the numbers
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set forth on the verdict sheet. Despite the different references to the numbers of
the counts, the First JOC accurately reflected the substantive crimes for which
defendant had been convicted, including that he had been convicted on the
charge of third-degree unlawful possession of a weapon in violation of N.J.S.A.
2C:39-5(b).
Defendant appealed, arguing, among other things, his sentence was
manifestly excessive. In a 2005 opinion, we affirmed the convictions and the
sentences except for the sentences on the endangering and certain-persons
convictions. State v. Evans, No. A-3398-03 (App. Div. Dec. 23, 2005). We
held a resentencing was required on those convictions and directed the judge on
remand also to reconsider the consecutive nature of the sentence imposed on the
certain-persons conviction. Id. at 5.
At the beginning of the resentencing hearing, the judge explained to
defendant, who was represented by counsel, that he had the right to speak during
the hearing if he wanted to do so. During the hearing, the judge asked counsel
to let him know if defendant wanted to address the court regarding the
resentencing. Defense counsel advised the judge defendant had indicated he did
not want to address the court. After hearing argument and considering the
applicable aggravating and mitigating factors, the judge imposed the same time
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periods of imprisonment but held defendant would serve the sentence on the
certain-persons conviction concurrent with the other sentences. Thus, the
aggregate sentence was forty-five years of imprisonment with a 32.5-year period
of parole ineligibility.
On February 3, 2006, the judge issued a written opinion on the
resentencing, in which he utilized the count numbering used on the verdict sheet
and addressed defendant's arguments regarding mitigating factors, and a new
judgment of conviction (the Second JOC), in which he utilized in the "final
charges" section the count numbering used on the indictment and, in the
discussion section, the count numbering used on the verdict sheet. Despite those
differences, like the First JOC, the Second JOC accurately reflected the
substantive crimes for which defendant had been convicted, including that he
had been convicted on the charge of third-degree unlawful possession of a
weapon in violation of N.J.S.A. 2C:39-5(b).
Within months of that decision, defendant appealed the new sentence and
petitioned for post-conviction relief (PCR). The court dismissed without
prejudice the PCR petition given the pending appeal. Defendant withdrew the
appeal and filed a new PCR petition. In that petition, defendant argued, among
other things, that the court and his counsel had failed to explain adequately "his
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sentencing exposure." The PCR judge denied the petition. We affirmed that
denial, State v. Evans, No. A-1702-11 (App. Div. Aug. 26, 2013), and the
Supreme Court denied defendant's petition for certification, State v. Evans, 218
N.J. 275 (2014).
In a September 28, 2017 letter, the then-presiding judge of the criminal
division of the Camden vicinage advised a Department of Corrections
"classification officer" of the death of the judge who had presided over
defendant's trial and had sentenced him. The presiding judge stated:
I have reviewed the file in this case and am providing
the following guidance. The confusion stems from the
fact that original count 4 (armed robbery) was
dismissed on the State's motion prior to trial and
original counts 5 through 8 were re-numbered as counts
4 through 7. So the "final charges" section on page 1
of the Judgment of Conviction (JOC) is accurate as it
reflects the numbering of the counts as they appear in
the Indictment. However, the numbering used on page
2 of the JOC is based on the re-numbering of original
counts 5 through 8 and this is incorrect. Enclosed is an
amended JOC that uses the correct numbering on page
2. I have not changed the Statement of Reasons because
that document clearly explains the re-numbering in
footnote 1 on the first page of the document.
Nothing in the record before us indicates what prompted the presiding judge to
write to the Department of Corrections officer. The record also is not clear as
to which "amended JOC" was enclosed in the presiding judge's letter.
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The record contains a document entitled "Change of Judgment of
Conviction and Order for Commitment 10/2/17 – AMENDED AS TO COUNTS
ONLY," which was signed and entered by the presiding judge on October 2,
2017 (the Third JOC). Throughout the Third JOC, the presiding judge used the
numbers set forth on the original indictment, not the verdict sheet, to refer to the
counts. The judge correctly stated defendant had been convicted of third-degree
unlawful possession of a weapon and had been sentenced to a five-year term of
imprisonment with a 2.5-year period of parole ineligibility for that conviction
but incorrectly indicated defendant had been charged and convicted for that
crime under paragraph (d) of N.J.S.A. 2C:39-5, not paragraph (b). A violation
of N.J.S.A. 2C:39-5(d) is a fourth-degree crime.
During October of 2017, defense counsel sent a letter to the Department
of Corrections officer asking for "copies of the sentencing documents presently
at issue" and a letter to the presiding judge noting "the JOC was recently
amended" and asking that "defendant be permitted to comment prior to final
amendment of the JOC." In a November 12, 2017 letter to the case manager,
defense counsel asked for a hearing regarding the Third JOC, citing Rule 3:21-
10(c).
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On November 15, 2017, a new judge entered a "Change of Judgment of
Conviction & Order for Commitment 10/31/17: CORRECTS FINAL COUNTS
ONLY" (the Fourth JOC). In the Fourth JOC, the judge referenced the dismissal
of the robbery count, which had been Count Four in the indictment, and the
September 16, 2003 amendment of the indictment to renumber the other counts.
He ordered the amendment of the First JOC "to correct the numbering of the
final charges ONLY." In the "final charges" section of the Fourth JOC, the
judge used the count numbering set forth on the verdict sheet. The judge
accurately identified defendant's conviction of third-degree unlawful possession
of a weapon as a violation of N.J.S.A. 39-5(b).
Defendant moved to modify his sentence. On February 6, 2018, the same
judge who had entered the Fourth JOC entered a "Change of Judgment of
Conviction & Order for Commitment 02/05/2018: VACATES AMENDED JOC
OF 11/15/2017" (the Fifth JOC). As the title indicates, the judge vacated the
Fourth JOC and stated that the Third JOC "remain[ed] in full force and effect."
In the "final charges" section of the Fifth JOC, the judge used the count
numbering set forth in the original indictment and incorrectly cited N.J.S.A.
2C:39-5(d) when referencing the charge and conviction for third-degree
unlawful possession of a weapon.
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In 2022, defendant filed a "petition for reconsideration and modification
of sentence," arguing he had not been present and had been deprived of the
opportunity to argue about the propriety of the amendments to the judgments of
conviction and for the consideration of any post-conviction rehabilitation and
his status as a youthful offender. After hearing argument, the motion judge
denied the motion in a decision placed on the record, finding the amendments to
the judgments of conviction were "administrative amendment[s] to correct . . .
typographical mistakes," defendant did not have a right to be present for an
administrative amendment to correct a typographical error, and defendant was
not entitled to consideration as a youthful offender under State v. Lane, 251 N.J.
84 (2022). On June 24, 2022, the judge entered an order denying "defendant's
motion for reconsideration and modification of his sentence."
On appeal, defendant argues:
I. THE JUDGMENT OF CONVICTION WAS
ILLEGALLY MODIFIED OUTSIDE APPELLANT'S
PRESENCE
II. THE JUDGMENT OF CONVICTION STILL
REMAINS INCORRECT DESPITE NUMEROUS
MODIFICATIONS BY THE COURT OUTSIDE OF
APPELLANT'S PRESENCE AND IN VIOLATION
OF APPELLANT'S DUE PROCESS RIGHTS
III. THE APPELLANT IS ENTITLED TO A
REMAND ON SENTENCING[.]
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Unpersuaded by those arguments, we affirm.
"There are two categories of illegal sentences: those that exceed the
penalties authorized for a particular offense, and those that are not authorized
by law. . . . Those two categories of illegal sentences have been 'defined
narrowly.'" State v. Hyland, 238 N.J. 135, 145 (2019) (quoting State v. Murray,
162 N.J. 240, 246 (2000)). Defendant does not claim the sentences imposed on
him exceeded the penalties authorized by law for the crimes for which he was
convicted. Instead, he asserts the purported failure "to consider any post-
conviction mitigation" and his absence from "any post-appeal modification"
rendered "his sentencing proceeding illegal." We disagree.
In his merits brief, defendant complains first about the resentencing the
trial judge conducted in 2006 after we remanded the case in 2005, contending
"it was conducted without a sentencing hearing as [the judge] merely issued an
opinion." In the interest of completeness and clarity of the record, we address
that argument, even though defendant long ago withdrew his appeal of that new
sentence. The record contradicts defendant's characterization of the February 3,
2006 proceeding. The transcript of the proceeding shows the judge began the
hearing by making sure defendant understood he had "the right to speak at this
resentencing, if he so desires"; heard argument from counsel, including defense
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counsel's argument about aggravating and mitigating factors; again asked if
defendant wanted to address the court; was informed by defense counsel that
defendant had indicated he did not want to address the court; and rendered a
decision that included his analysis of aggravating and mitigating factors.
Contrary to defendant's assertion, the judge did not "just read aloud a prewritten
opinion on re-sentencing . . . . "
In the Fifth JOC, the judge vacated the Fourth JOC and held the Third
JOC was "in full force and effect." Defendant does not challenge the vacation
of the Fourth JOC or the judges' use in the Third JOC and the Fifth JOC of the
count numbering set forth in the original indictment. He complains that he was
not given an opportunity to address the court before the Third JOC and the Fifth
JOC were issued and that those judgments of conviction incorrectly reference
subparagraph (d) of N.J.S.A. 2C:39-5 in connection with his conviction for
third-degree unlawful possession of a weapon.
Rule 3:21-4(b) provides that a "[s]entence shall not be imposed unless the
defendant is present or has filed a written waiver of the right to be present."
Thus, a criminal defendant has the right to be present and to speak when a court
is imposing a sentence on that defendant. See State v. Jones, 232 N.J. 308, 318-
19 (2018) (confirming a criminal defendant's right to be present and to speak at
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sentencing). The basis of that right is a recognition that a criminal defendant
should have the opportunity to speak to the court before the court imposes a
sentence on that defendant because "[t]he most persuasive counsel may not be
able to speak for a defendant as the defendant might, with halting eloquence,
speak for himself." State v. Zola, 112 N.J. 384, 428 (1988) (quoting Green v.
United States, 365 U.S. 301, 304 (1961)).
However, the correction of a clerical error in a judgment of conviction is
not the equivalent of a sentencing or resentencing of a defendant. Rule 1:13-1
provides:
Clerical mistakes in judgments, orders . . . and errors
therein arising from oversight and omission may at any
time be corrected by the court on its own initiative or
on the motion of any party, and on such notice and
terms as the court directs, notwithstanding the
pendency of an appeal.
A "reconsideration of a sentence" may "require a court to conduct a new
sentencing proceeding[,]" but "'mere corrections of technical errors'" don't
"'require sentencing anew.'" State v. Robinson, 217 N.J. 594, 611 (2014)
(quoting State v. Randolph, 210 N.J. 330, 350 (2012)). In Robinson, the court
recognized that the remand at issue was "not [a] remand simply to alter the
judgment of conviction to reflect a merger of certain counts" but "require[d] an
entirely new sentencing proceeding." Ibid.; see also State v. Funderburg, 225
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N.J. 66 (2016) (finding we had "properly remanded for correction of the
judgment of conviction to address" the sentencing judge's improper merging of
some weapons charges); State v. Williams, 219 N.J. 89 (2014) ("Because the
judgment of conviction contains a typographical error in the grading of the two
gun convictions, this matter must be remanded to the trial court for this technical
correction."). In correcting a technical error on a judgment of conviction, the
court is not reconsidering the sentence imposed on the defendant. The years of
imprisonment to be served remain the same. Accordingly, a defendant's right to
be present at a new sentencing is not triggered by the correction of a scrivener's
error on a judgment of conviction.
And that's what the judges were doing in issuing the Third JOC and the
Fifth JOC. For the sake of consistency and clarity, they were adopting and
putting into place the count numbering used on the original indictment. They
weren't changing the crimes of which defendant had been convicted or the years
of imprisonment for which he was to serve for those convictions. They weren't
sentencing him "anew." Randolph, 210 N.J. at 350. Thus, defendant was not
entitled to be present or heard at a new sentencing hearing and was not entitled
to consideration as a youthful offender under State v. Lane, 251 N.J. 84.
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Unfortunately, in issuing the Third JOC, the judge incorrectly cited
subparagraph (d) of N.J.S.A. 2C:39-5 when referencing defendant's charge and
conviction for third-degree unlawful possession of a weapon, instead of
subparagraph (b), which indisputably is the subparagraph under which
defendant was charged and convicted. The judge who issued the Fifth JOC
repeated that error. Defendant did not raise this issue in his "petition for
reconsideration and modification of sentence." We nevertheless agree, and the
State agrees, the case should be remanded for the issuance of a judgment of
conviction that accurately identifies the statutory basis, N.J.S.A. 2C:39-5(b), for
defendant's conviction for third-degree unlawful possession of a weapon. That
correction of a technical error does not require a new sentencing hearing.
Affirmed and remanded with a direction the trial court issue a corrected
judgment of conviction. We do not retain jurisdiction.
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