State of New Jersey v. Daiquan C. Blake ( 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NOT FOR PUBLICATION WITHOUT THE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-2241-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAIQUAN C. BLAKE,
Defendant-Appellant.
________________________
Argued October 10, 2024 – Decided October 24, 2024
Before Judges Mawla, Natali, and Vinci.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 17-03-
0259.
Scott M. Welfel, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer Nicole Sellitti,
Public Defender, attorney; Scott M. Welfel, of counsel
and on the briefs).
Regina M. Oberholzer, Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Attorney General, attorney; Regina M. Oberholzer, of
counsel and on the brief).
PER CURIAM
Defendant Daiquan C. Blake appeals from the February 1, 2023 change of
judgment of conviction entered following remand for resentencing pursuant to
State v. Torres, 246 N.J. 246 (2021). We affirm, but remand for correction of
the period of parole ineligibility imposed on count three.
We previously discussed the underlying facts and procedural history of
defendant's case when we affirmed his conviction. State v. Blake, No. A-1554-
18 (App. Div. Feb. 17, 2022) (slip op. at 3-10). We include a brief summary of
the facts for purposes of addressing defendant's arguments.
In September 2016, defendant, who was nineteen years old, was attending
a baby shower for his ex-girlfriend, Sianni Powers, at the home of Reggie and
Juanita Holley. At the shower, defendant had an argument with Powers's sister's
boyfriend, Marvin Sharpe, and was asked to leave. Evidence at trial established
defendant left the shower with the intention to retrieve his handgun and confront
Sharpe. Several hours later, defendant returned to the Holley residence armed
with a handgun concealed in his waistband looking for Sharpe. Defendant spoke
with Reggie Holley, who told him Sharpe was not there. Defendant waited near
the residence. At some point, other individuals arrived in a car. The Holleys
were standing outside. Reggie Holley was holding a long gun, which may have
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been a pellet gun. Defendant fired his gun toward the Holleys, striking Juanita
Holley in the chest and killing her.
Defendant was indicted for: first-degree murder, N.J.S.A. 2C:11-3(a)(1)
(count one); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1) (count two); second-degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b)(1) (count three); fourth-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(4) (count four); and second-degree conspiracy to
commit aggravated assault, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:12-1(b)(1)
(count five).
The jury convicted defendant on counts one through four. On count one,
the jury convicted defendant of the lesser-included offense of second-degree
passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2). At sentencing, the
trial judge found no applicable mitigating factors. The judge applied
aggravating factors three (the risk that defendant will commit another offense)
and nine (the need for deterring defendant and others from violating the law) ,
N.J.S.A. 2C:44-1(a)(3) and (9), giving both factors "substantial weight." The
judge merged counts two and four into count one and sentenced defendant to ten
years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On
count three, the judge sentenced defendant to ten years pursuant to the Graves
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Act, N.J.S.A. 2C:43-6(c), subject to a five-year period of parole ineligibility.
After analyzing the factors set out State v. Yarbough, 100 N.J. 627 (1985), the
judge determined counts one and three would be served consecutively.
At the request of the State and defendant, we remanded for resentencing
pursuant to Torres, which was decided by our Supreme Court during the
pendency of defendant's appeal. We concluded defendant was entitled to a full
rehearing and ordered a reassessment of all aggravating and mitigating factors,
including mitigating factor fourteen, N.J.S.A. 2C:44-1(b)(14), which was
enacted after defendant was sentenced.1
On February 1, 2023, the court resentenced defendant. After appropriate
mergers, the court sentenced defendant to ten years subject to NERA, on count
one. On count three, unlawful possession of a handgun, defendant was
sentenced to eight years subject to a five-year period of parole ineligibility
pursuant to the Graves Act, consecutive to the sentence imposed on count one.
The court applied aggravating factors three and nine, giving each
substantial weight, and mitigating factor fourteen, giving it moderate weight.
1
N.J.S.A. 2C:44-1(b)(14) added as a mitigating factor, "[t]he defendant was
under [twenty-six] years of age at the time of the commission of the offense."
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The court found the aggravating factors preponderated over the mitigating
factor.
According to the presentence report, defendant had one juvenile finding
of delinquency in 2013 for resisting arrest, N.J.S.A. 2C:29-2(a), and another
juvenile arrest that resulted in diversion. He had one adult disorderly persons
conviction for failure to disperse upon official order, N.J.S.A. 2C:33-1(b), in
2015, and one petty disorderly persons offense for disorderly conduct, N.J.S.A.
2C:33-2(a)(1), in 2016. He had one adult ordinance violation for improper
conduct in 2016. Defendant had a total of six adult arrests, including charges of
domestic violence that were dismissed.
The court found aggravating factor three, noting it "listened to what
[defendant] had to say . . . and [he was] different today than [he was] before.
And [the court] can see that being part of the maturation process . . . . However,
that does not mean that the risk [of re-offense] is really any different." The court
was not convinced defendant's behavior in prison showed a decreased risk of re-
offense because he is "hemmed in" and does not "have a great deal of autonomy
of action" in prison. It explained it gave aggravating factor three substantial
weight because:
[T]o point a gun in the direction of anybody and pull
the trigger requires more than just youthful exuberance.
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It requires a level of something that not everybody has.
I would dare say, most people do[ not].
....
You have to be a certain kind of person to do that and
it[ is] not a function of youth. Because otherwise, all
young people would be out there pointing guns at
people and pulling triggers. So it [is] not an indictment
of you personally, it[ is] an assessment of risk and when
a person can reach that point that they can do that, they
can reach that point again.
The court also applied aggravating factor nine, finding the need for
"deterrence in both a specific and general sense is extremely high" because of
the nature of the offenses defendant committed. It was not convinced the need
for specific deterrence was diminished by defendant's "increased level of
maturity" because he is "in [a] controlled environment." The court noted there
"is secondary gain involved here" because defendant stands to benefit from
complying with the rules in prison and "it[ is] hard to assess what[ is] permanent
and what[ is] not" until defendant is "back in society where it counts."
The court rejected defendant's request for mitigating factor nine
substantially for the reasons it explained in finding a risk of re-offense and the
need for specific deterrence. It applied mitigating factor fourteen because
defendant was under the age of twenty-six at the time of the offense. The court
found defendant's statement at sentencing had "some effect" and based on his
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statement the court saw "some changes" and "maturity" that warranted giving
mitigating factor fourteen "moderate effect."
Applying the Yarbough factors, the court imposed consecutive sentences.
It found the crimes and their objectives were independent of each other because
defendant was unlawfully in possession of the handgun initially for the purpose
of confronting Sharpe and later fired the gun with the purpose of shooting
Reggie Holley.
The court also determined the crimes were committed at separate times.
Specifically, the court found:
The actual decision is the moment he left the house with
[the gun], which is sometime around 3:30, maybe 4:00
o'clock . . . . That moment, that[ is] when he crossed
the line committing an offense of unlawful possession
of a weapon. That is occurring before 4:00 o'clock.
The shooting does[ not] take place until 8:00 o'clock,
four hours later. They[ are] not occurring at the same
time and they were[ not] done for the same purpose
....
The court found the offenses involved multiple victims because Sharpe was
defendant's initial intended victim when he retrieved his gun, and Reggie and
Juanita Holley were "within the line of fire when [defendant] fired the gun . . . ."
Pursuant to Torres, the court found the overall sentence was not "unjust
or unfair given the gravity of what occurred." The court also considered that
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"applying consecutive sentences . . . , even if it were as originally
sentenced . . . [twenty] total years, . . . [defendant will] be under the age of
[forty] by the time he reaches his parole . . . ."
Defendant raises the following points for our consideration on appeal.
POINT I
RESENTENCING IS REQUIRED BECAUSE THE
TRIAL COURT: (A) FAILED TO APPROPRIATELY
CONSIDER BLAKE'S POST-OFFENSE
REHABILITATIVE CONDUCT[,] THE AGE-CRIME
CURVE, AND ADOLESCENT BRAIN SCIENCE; (B)
MADE FINDINGS FOR AGGRAVATING FACTORS
THREE AND NINE THAT WERE NOT SUPPORTED
BY COMPETENT, CREDIBLE EVIDENCE IN THE
RECORD; (C) IMPOSED CONSECUTIVE
SENTENCES IN VIOLATION OF . . . YARBOUGH
AND . . . TORRES; (D) CONSIDERED
DEFENDANT'S DISMISSED CHARGES IN
[2]
VIOLATION OF STATE V. K.S. ; AND (E)
IMPOSED AN ILLEGAL PAROLE DISQUALIFIER
ON COUNT THREE.
A. The Sentencing Court Erred In Failing To
Appropriately Consider Blake's Post-Offense
Rehabilitative Conduct, The Age-Crime Curve,
And Adolescent Brain Development When
Considering Aggravating Factors Three And Nine
And Mitigating Factors Nine And Fourteen.
1. In failing to give weight to Blake's positive
prison record and other post-offense
rehabilitative conduct, the [c]ourt failed to
2
220 N.J. 190 (2015).
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sentence Blake as he stood on the date of
sentencing and its finding of aggravating factors
three and nine were not supported by
competent, credible evidence in the record.
2. Because the [c]ourt's reasoning in finding and
weighing aggravating factors three and nine and
mitigating factor fourteen and in declining
mitigating factor nine failed to address the
extremely relevant adolescent brain science and
age-crime curve, the [c]ourt's findings were not
supported by competent, credible evidence in
the record.
B. The Court's Rationales For Aggravating Factors
Three And Nine Were Impermissible Because The
Court Double-Counted The Fact That The
Manslaughter Was Committed By A Firearm,
Speculated That Individuals Who Have Fired A
Gun At Another Person Are More Likely To
Reoffend, And Relied Exclusively On General
Deterrence Without Finding Any Need For
Specific Deterrence.
C. The Court's Rationale For Imposing Consecutive
Sentences Was Not Justified By Yarbough Or
Torres.
1. The [c]ourt's findings that the Yarbough factors
justified a consecutive sentence were
unsupported by the facts or by Yarbough.
2. The [c]ourt's assessment of the overall fairness
of the sentences was fatally flawed for the same
reasons as its assessments of aggravating
factors three and nine; its assessment of the
need to incapacitate and deter were not
supported by competent, credible evidence in
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the record and it failed to consider relevant
social science regarding deterrence and
incapacitation.
D. The Court Erred In Considering Defendant's
Dismissed Charges.
E. The Parole Disqualifier Imposed On Count Three
Is Illegal.
F. This Case Should Be Reassigned To A Different
Judge On Remand.
We review a sentence imposed by a trial court under an abuse of discretion
standard. State v. Jones, 232 N.J. 308, 318 (2018). In doing so, we consider
whether: "(1) the sentencing guidelines were violated; (2) the findings of
aggravating and mitigating factors were . . . 'based on competent evidence in the
record;' [and] (3) 'the application of the guidelines to the facts' of the case
'shock[s] the judicial conscious.'" State v. Bolvito, 217 N.J. 221, 228 (2014)
(second alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).
In determining a sentence for imprisonment, the sentencing judge must
consider the aggravating factors delineated in N.J.S.A. 2C:44-1(a)(1)-(15) and
the mitigating factors in N.J.S.A. 2C:44-1(b)(1)-(14). The sentencing court
must qualitatively weigh and assess all relevant factors. State v. Case, 220 N.J.
49, 65 (2014). Any factors that are "amply based in the record . . . must be
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found." State v. Dalziel, 182 N.J. 494, 504 (2005). A sentencing court must
assess defendants "as [they] stand[] before the court on the day of sentencing,"
including any post-offense conduct or rehabilitation. State v. Jaffe, 220 N.J.
114, 124 (2014).
We are satisfied the court appropriately found and weighed the
aggravating and mitigating factors based on competent evidence in the record
and assessed defendant as he stood before the court on the day of sentencing.
We do not perceive any basis to conclude the court abused its discretion in
finding and balancing the aggravating and mitigating factors. Defendant's
contentions that the court "failed to appropriately consider" defendant's post-
offense rehabilitative conduct, the age-crime curve, and adolescent brain
development science are directly contradicted by the record and lack merit.
Likewise, defendant's contention that the court "relied exclusively on general
deterrence without finding any need for specific deterrence" is not supported by
the record.
We are unconvinced by defendant's contention that the court improperly
considered defendant's prior dismissed charges, including dismissed domestic
violence charges. At sentencing, defendant asked the court to find mitigating
factor seven, that the "defendant has no history of prior delinquency or criminal
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activity or has led a law-abiding life for a substantial period of time before the
commission of the present offense." N.J.S.A. 2C:44-1(b)(7). The court rejected
that mitigating factor, stating:
And of course we[ are] talking about [m]itigating
[f]actor [s]even when we[ are] talking about
[defendant's prior history].
Here[ is] the difference between a person who has
never, ever, ever gone afoul of the law even to the point
of an accusation to a person who[ is] dancing through
the raindrops . . . and then finally has one hit.
The court properly considered defendant's prior history of delinquency
and criminal conduct in addressing defendant's request for mitigating factor
seven. The record does not support defendant's claim that the court improperly
considered his prior dismissed charges.
We are not persuaded by defendant's argument that the court's imposition
of consecutive sentences was unsupported by the facts or by Yarbough. When
the imposition of consecutive terms is challenged, we must ensure that the
principles set forth in Yarbough, as later clarified by State v. Zuber, 227 N.J.
422, 449 (2017), were correctly applied. Yarbough recognizes that "there can
be no free crimes in a system for which the punishment shall fit the crime." 100
N.J. at 643. To ensure compliance with that central theme, a judge must
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separately state the reasons for consecutive terms in the sentencing decision,
and, in reaching a conclusion, the judge must consider whether:
[(1)] the crimes and their objectives were
predominantly independent of each other;
[(2)] the crimes involved separate acts of violence or
threats of violence;
[(3)] the crimes were committed at different times or
separate places rather than being committed so closely
in time and place as to indicate a single period of
aberrant behavior;
[(4)] any of the crimes involve multiple victims; [and]
[(5)] the convictions for which the sentences are to be
imposed are numerous . . . . [ ]
[Id. at 644.]
We are satisfied the court correctly applied the Yarbough factors and its
findings were amply supported by the record. The court found the offenses of
unlawful possession of a handgun and manslaughter were committed with
independent objectives, at different times, and involved multiple victims. The
court did not abuse its discretion by imposing consecutive sentences .
We are also convinced the court properly considered the overall fairness
of the sentence imposed as required by Torres. Pursuant to Torres, the
sentencing court should "place on the record its statement of reasons for the
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decision to impose consecutive sentences, which . . . should focus 'on the
fairness of the overall sentence, and the sentencing court should set forth in
detail its reasons for concluding that a particular sentence is warranted. '" 246
N.J. at 267-68. In this case, the court placed on the record its statement of
reasons for the decision to impose consecutive sentences, focusing on the gravity
of the offenses, the overall sentence imposed, and defendant's age.
The parties agree the period of parole ineligibility imposed on count three
must be corrected. Pursuant to the Graves Act, "[t]he 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). Defendant was sentenced to eight years on count
three with a five-year period of parole eligibility, instead of one half of the
sentenced imposed, or four years. We remand for correction of the judgment of
conviction on count three to include a four-year period of parole ineligibility.
To the extent we have not addressed any remaining arguments, it is
because they lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
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Affirmed in part and remanded in part for correction of the period of
parole ineligibility imposed on count three in accordance with this opinion. We
do not retain jurisdiction.
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