State of New Jersey v. Warren Jenkins ( 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NOT FOR PUBLICATION WITHOUT THE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-3428-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WARREN JENKINS,
Defendant-Appellant.
_______________________
Submitted October 17, 2024 – Decided November 18, 2024
Before Judges Currier and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 95-08-2755.
Warren Jenkins, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Boris Moczula, Deputy Attorney General,
of counsel and on the brief).
PER CURIAM
Defendant, Warren Jenkins, appeals from a May 25, 2023 order denying
his motion to correct an illegal sentence. We affirm.
I.
We distill the following pertinent facts and procedural history from our
decision on direct appeal, State v. Jenkins, 349 N.J. Super. 464 (App. Div. 2002),
and the record.
Tried by jury, defendant was convicted and sentenced in 1998 for offenses
arising from the shooting death of John Deventer and the separate carjacking of
Rose Weinbaum, crimes we appropriately described as part of defendant's
"crime spree in Newark and the surrounding area in spring and summer of 1995."
Id. at 468.1 Specifically, Deventer, a retired police chief, was shot and killed
one morning when he attempted to resist and prevent the carjacking of his
elderly neighbors, the Wolfs, as he drove them around for their daily errands
including a stop to the local cemetery. While Deventer was out of the vehicle
to speak with a working gardener at the cemetery, two assailants entered the
vehicle and forced the eighty-year-old Wolfs from the vehicle holding a gun to
Mr. Wolf's head. As we previously summarized,
[t]he two assailants then approached Deventer and the
gardener who, by then, were returning to the car. The
two demanded the keys to the car and Deventer resisted.
A struggle ensued and Deventer shouted, "I am a cop."
1
Defendant was previously convicted for additional offenses occurring during
that time frame, which we also affirmed. State v. Jenkins, 321 N.J. Super. 124(App. Div. 1999).
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One of the attackers told the man with the gun, "Shoot
him" and the other immediately complied, shooting
Deventer in the abdomen. Deventer collapsed and the
two assailants stole the car keys, ran back to the Town
Car and drove off. Mr. Wolf sent his wife to summon
help; Deventer died in his arms.
[Id. at 469.]
Later that same day, Rose Weinbaum, her elderly father, and her two-year-
old child were carjacked at gunpoint, and her father was knocked to the ground
as he attempted to resist. Id. at 470. Investigation tied defendant to both
offenses, and defendant was charged and tried for murder, carjacking, and
related offenses arising from these attacks.
The jury convicted defendant of aggravated manslaughter as a lesser-
included offense of murder, N.J.S.A. 2C:11-4; felony murder, N.J.S.A. 2C:11-
3(a)(3) (Graves Act, N.J.S.A. 2C:43-6(c)); two counts of carjacking, N.J.S.A.
2C:15-2; robbery, N.J.S.A. 2C:15-1; two counts of conspiracy, N.J.S.A. 2C:5-
2; aggravated assault, N.J.S.A. 2C:12-1(b)(4) (Graves Act, N.J.S.A. 2C:43-
6(c)); two counts of possession of a handgun for an unlawful purpose, N.J.S.A.
2C:39-4(a); two counts of unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b); and one count of receiving stolen property, N.J.S.A. 2C:20-7.
At sentencing, the court found the aggravating factors substantially
outweighed the non-existent mitigating factors. The court first recognized
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defendant's background at the age of thirty-three and his "substantial criminal
history, including five prior indictable convictions," noting those for which the
court recently imposed a prison term of fifty-eight years with twenty-nine years'
parole ineligibility. The court described the gravity of the offenses and the harm
caused to multiple victims explaining, "[i]t is difficult, indeed impossible, to
describe accurately the physical and emotional suffering and loss which you
have caused to so many. Yet you demonstrate no remorse. Worse yet, you have
preyed upon the innocent, the weak[,] and the aged."
Specifically, the court evaluated the sentencing factors and found:
Frankly, I can't find any mitigating factors to apply to
your sentencing here. What I find particularly
disturbing is the fact that . . . you knew or reasonably
should have known that the victim of the offense here
was . . . particularly vulnerable or incapable of
resistance through age, ill health, in one case their
youth, [and] their presence at the cemetery, a place of[]
hopeful[] tranquility[,] not a place of violence.
[There's] [t]he risk that you'll commit another offense
and the reality that this episode evidenced a continuing
and escalating spiral of violence which culminated in
this murder. I've considered the extent of your prior
criminal record and the seriousness of the offenses . . . .
There's a need to deter and I'm clearly convinced, based
upon all those factors, the aggravating factors
substantially outweigh any mitigating factors.
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In determining whether to impose sentences consecutively or
concurrently, the court evaluated the facts and circumstances pertinent to the
offenses under State v. Yarbough, 100 N.J. 627 (1985). The court expressly
recognized that "for purposes of excessive sentence review it is the total
aggregate sentence which must be looked at and not merely the justification for
each count." The court further cited to State v. Candelaria, 311 N.J. Super. 437(App. Div. 1998), then recently decided, acknowledging that despite there being
no outer limit to consecutive sentencing, "the principle that offenders must be
safeguarded from excessive, disproportionate[,] or arbitrary punishment still
applies."
The court explained it had
considered the crimes, the fact that the crimes and the
objectives were predominantly dependent on each
other, particularly as it applies to the carjacking of
[Mrs.] Weinbaum and the incident at the cemetery.
Those crimes involve[d] separate acts of violence.
They were committed at different times and separate
places. They involve[d] multiple victims. We're
talking about numerous victims.
Specifically addressing defendant, the court elaborated:
[Y]ou chose your victims to be weak and vulnerable.
You carjacked the Wolfs, an elderly couple, a couple
enjoying the last years of [their] life, in part by paying
respect to those who had passed before them . . . . You
shot and killed John De[v]enter, an unarmed[,] retired
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police officer, [and] a good Samaritan who was merely
trying to help his friends. And then you carjacked Mrs.
Weinbaum who was simply taking her elderly father to
the doctor [while] accompanied by a child.
The court expressed its understanding that the sentence "must be limited
to that which the law authorizes," must be "free . . . of improper emotions and
motivations," and may not be "impose[d] for the mere purpose of vengeance or
merely to satisfy public demand for vengeance." Referencing defendant's prior
convictions, the court found the nature of defendant's separate and distinct new
offenses demonstrated the risk of reoffending, the danger he posed to the public,
and the need to deter defendant and others, necessitating lengthy imprisonment.
Applying these principles, and after imposing a discretionary extended
term of imprisonment, N.J.S.A. 2C:44-3(d), the court sentenced defendant to
life in prison for felony murder, with thirty-five-years' parole ineligibility and
thirty-years' imprisonment with fifteen-years' parole ineligibility for each
carjacking to run concurrently with each other, but consecutively to the felony
murder term. The court sentenced defendant concurrently on the remaining
counts for an aggregate sentence of life in prison, with a fifty-year period of
parole ineligibility.
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On direct appeal, we affirmed the sentence, rejecting defendant's claim
the sentence was "manifestly excessive in that the [sentencing judge] imposed
both maximum and consecutive sentences." Jenkins, 349 N.J. Super. at 480.
II.
Twenty-five years after sentencing, defendant filed a motion to correct an
illegal sentence under Rule 3:21-10(b)(5). Defendant argued the sentencing
court illegally imposed consecutive sentences in violation of Yarbough, 100 N.J.
at 627, and failed to make an explicit fairness statement under State v. Torres,
246 N.J. 246 (2021). The motion court first determined that Torres did not
espouse a new rule of law, but instead "merely emphasized what has always
been required under the [Criminal] Code and Yarbough: that judges must
explicitly assess fairness when imposing consecutive sentences." The court then
denied defendant's claims, finding "there is no basis on which the requested
relief can be granted" because "the sentence . . . is not an illegal sentence" under
the law.
III.
Defendant raises the following arguments on appeal:
POINT I
THE TRIAL COURT ERRED IN FAILING TO
GRANT [DEFENDANT]'S CLAIM THAT THE
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SENTENCING COURT FAILED TO MAKE AN
EXPLICIT STATEMENT CONSIDERING THE
OVERALL FAIRNESS OF THE CONSECUTIVE
SENTENCES BEING IMPOSED AS REQUIRED BY
STATE V. YARBOUGH, 100 N.J. 627 (1985), AND
STATE V. TORRES, 246 N.J. 246 (2021), AND
N.J.S.A. 2C:1-2 IN VIOLATION OF THE
[DEFENDANT]'S 8TH AND 14TH AMENDMENT
RIGHTS.
POINT II
THE NEW JERSEY SUPREME COURT'S DECISION
IN STATE V. TORRES, 246 N.J. 246 (2021)
SPECIFICALLY APPLIES TO THE [DEFENDANT]
BECAUSE TORRES "REPRESENTS AN
ENUNCIATION OF THE STATUTORY LANGUAGE
PRESENT SINCE THE STATUTE'S ENACTMENT
IN 1978", AND THE COURT'S REQUIREMENT TO
CONDUCT AN OVERALL FAIRNESS
ASSESSMENT "IS SIMPLY THE RULE THAT HAS,
OR SHOULD HAVE, ALWAYS BEEN APPLIED."
STATE V. BULL, 227 N.J. 555 (2017) . . . .
Here, defendant again seeks review of his consecutive sentences and
retroactive application of Torres, 246 N.J. at 246. The State counters that the
motion court correctly determined defendant's challenges are not cognizable
under Rule 3:21-10(b)(5) as challenges to consecutive sentences do not
implicate the legality of a sentence, and Torres nevertheless simply affirms the
fairness requirement established by "long-standing caselaw."
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IV.
We have considered defendant's arguments and determine they lack
sufficient merit to warrant extended discussion in a written opinion. See R.
2:11-3(e)(2). We briefly summarize our reasons for denying relief.
Rule 3:21-10(b)(5) provides that "[a] motion may be filed and an order
may be entered at any time . . . correcting a sentence not authorized by law
including the Code of Criminal Justice." Claims asserting the illegality of a
sentence are reviewed de novo, see State v. Nance, 228 N.J. 378, 393 (2017), as
are questions of law regarding whether claims are procedurally barred, see State
v. Robinson, 217 N.J. 594, 603-04 (2014).
Our Criminal Code does not define what constitutes an "illegal sentence,"
but our courts recognize "two categories of illegal sentences: those that exceed
the penalties authorized for a particular offense, and those that are not authorized
by law." State v. Hyland, 238 N.J. 135, 145 (2019). These categories "have
been 'defined narrowly.'" Ibid. (quoting State v. Murray, 162 N.J. 240, 246
(2000)). A "defendant's contentions regarding consecutive sentences or the
absence of reasons for imposition of the consecutive sentences do not relate to
the issue of sentence 'legality' and are not cognizable on [post-conviction relief
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(PCR)], or under the present Rule 3:21-10(b)(5)." State v. Acevedo, 205 N.J.
40, 47 (2011); see also Hyland, 238 N.J. at 145-46 (stating a sentence "is not
illegal if the sentencing judge fails to state the reasons for imposition of a
sentence . . . but otherwise imposes an authorized sentence").
Applying these principles, we concur that these claims are not cognizable
under Rule 3:21-10(b)(5) as the sentence is not illegal. Here, defendant's
arguments regarding the sentencing court's imposition of consecutive sentences
for the felony murder and carjacking offenses fall outside Rule 3:21-10(b)(5)'s
limited scope. See State v. Flores, 228 N.J. Super. 586, 596 (App. Div. 1988)
("perceiv[ing] no need to make [PCR] an open sesame for the wholesale review
of sentences"). The imposed terms did not exceed their permissible statutory
ranges.
In addition, defendant's challenge to his sentence as "grossly excessive"
due to the imposing of "both maximum and consecutive sentences" was
previously considered and denied on direct appeal. We need not address the
consecutive nature of this sentence again, see State v. Njango, 247 N.J. 533, 544
(2021), but were we to do so, we are again satisfied the court's imposition of
consecutive sentences was aligned with the core principles of fairness and
uniformity set forth in the Criminal Code and safeguarded by Yarbough and
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applicable caselaw. We discern no illegality as the consecutive sentences and
aggregate term were anchored in both the law and the record.
We do not construe Torres as creating a new rule of law requiring
retroactive application or impacting the legality of defendant's sentence. See
State v. Feal, 194 N.J. 293, 308-09 (2008); see also State v. Burstein, 85 N.J.
394, 403 (1981) (stating "retroactivity can arise only where there has been a
departure from existing law"). Instead, the Supreme Court in Torres reviewed
fundamental sentencing principles and "reiterate[d] the repeated instruction that
a sentencing court's decision whether to impose consecutive sentences should
retain focus on 'the fairness of the overall sentence.'" Torres, 246 N.J. at 270
(quoting State v. Miller, 108 N.J. 112, 121 (1987)). Here, we are nevertheless
satisfied the sentencing court painstakingly fashioned defendant's sentence
guided by the very sentencing principles amplified by the Torres Court.
Affirmed.
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