STATE OF NEW JERSEY VS. D.C. (15-11-1309, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3276-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.C.,
Defendant-Appellant.
______________________________
Argued September 7, 2017 – Decided October 5, 2017
Before Judges Rothstadt and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Accusation
No. 15-11-1309.
Alyssa A. Aiello, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. Aiello, of counsel and on the brief).
Carol M. Henderson, Assistant Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Ms. Henderson, of counsel and on the
brief).
PER CURIAM
Defendant appeals the court's imposition of the special
sentence of parole supervision for life, N.J.S.A. 2C:43-6.4(a),
upon the State's motion following his conviction for second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a).
Defendant contends imposition of parole supervision for life was
based on improper judicial fact-finding in violation of his rights
under the Sixth and Fourteenth Amendments to the United States
Constitution and was otherwise not supported by the record. We
disagree and affirm.
I.
Defendant pleaded guilty to an accusation charging him with
second-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4(b)(5)(a). Under his negotiated plea agreement, the State agreed
to recommend that the court sentence defendant as a third-degree
offender and order defendant's compliance with Megan's Law,
N.J.S.A. 2C:7-1 to -23. The State also represented that it would
file a motion under N.J.S.A. 2C:43-6.4(a) for the imposition of
the special sentence of parole supervision for life.
During the plea proceeding, defendant testified he knowingly
possessed and sent pictures of a child engaged in a sex act from
his home in Virginia to an individual he later learned was a
detective in Westhampton Township. The court accepted defendant's
plea and scheduled the matter for sentencing.
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The State filed a motion for imposition of parole supervision
for life under N.J.S.A. 2C:43-6.4(a). In pertinent part, the
statute provides that "a court imposing sentence on a person who
has been convicted of endangering the welfare of a child pursuant
to [N.J.S.A. 2C:34-4(b)(5)] . . . shall include, upon motion of
the prosecutor, a special sentence of parole supervision for life
in addition to any other sentence authorized . . . , unless the
court finds on the record that the special sentence is not needed
to protect the community or deter the defendant from future
criminal activity." N.J.S.A. 2C:43-6.4(a).
The judge sentenced defendant to a three-year custodial term
and compliance with Megan's Law. The judge granted the State's
motion and imposed the special sentence of parole supervision for
life, N.J.S.A. 2C:43-6.4, setting forth his reasons in a written
decision. The judge found defendant made a website posting seeking
"taboo fantasies." Defendant stated he "want[ed] to hear all
about . . . fantasies and desires[,] your stories[,] your taboo[,]"
sought to "exchange stories[,] ideas[,] taboo things you've done
[and] I've done[,]" and "want[ed] to know all of your taboo
stories[.]"
The judge determined the record further showed that in
response to the posting, a Burlington County Prosecutor's Office
detective posed as an adult male and said he fantasized about his
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five-year-old daughter in a sexual manner. Defendant responded,
stating he had been "messing around" with his three daughters
since they were six-years-old and had been having sexual
intercourse with his oldest daughter since she was eleven.
Defendant sent the detective a photo of a Caucasian female
who was approximately fourteen-years-old. Defendant also sent a
batch of photographs including a photograph of a ten to twelve-
year-old female performing oral sex on an adult male. Defendant
stated that the photographs were of one of his daughters. Over
the course of three days, defendant also sent photographs depicting
child pornography. Further investigation revealed other website
postings and emails in which defendant detailed sexual acts he
said he performed with one of his daughters.
The judge explained that upon defendant's arrest, he admitted
engaging in incest-related communications with others and
acknowledged he told several people he was having sex with his
fourteen-year-old daughter. He also admitted sending photographs
of his fourteen-year-old daughter to individuals while
communicating on the computer. Defendant denied having sexual
relations with any of his daughters.
Based on his findings, the judge reasoned that the sexual
nature and detail of defendant's communications with individuals
unknown to him, his "stated desire to engage in sexual acts with
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his children, his willingness to exploit his children for his own
sexual gratification, along with his possession and distribution
of children pornography" established that defendant required
supervision to protect the community and deter defendant from
criminal activity. The court therefore granted the State's motion
for imposition of parole supervision for life under N.J.S.A. 2C:43-
6.4(a).
Defendant appealed his sentence, challenging only the court's
imposition of parole supervision for life. He makes the following
arguments:
POINT I
THE PROVISION OF N.J.S.A. 2C:43-6.4 THAT
REQUIRES THE IMPOSITION OF PAROLE SUPERVISION
FOR LIFE (PSL) BASED ON JUDICIAL FACT-FINDING
VIOLATES THE SIXTH AND FOURTEENTH AMENDMENTS
TO THE UNITED STATES CONSTITUTION, AND
THEREFORE, THE SENTENCE OF PSL IMPOSED ON
[DEFENDANT] PURSUANT TO THAT PROVISION MUST
BE VACATED. (Not Raised Below)[.]
POINT II
BASED ON THE RECORD, A SPECIAL SENTENCE OF PSL
WAS NOT NEEDED TO PROTECT THE COMMUNITY OR
DETER [DEFENDANT] FROM FUTURE CRIMINAL
ACTIVITY. THEREFORE, THE TRIAL COURT'S ORDER
IMPOSING PSL MUST BE VACATED. []
II.
Defendant first claims N.J.S.A. 2C:43-6.4(a) is
unconstitutional because it permits a court to increase the penal
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consequences of a conviction, by imposing parole supervision for
life,1 based on judicial fact-finding in violation of his rights
under the Sixth Amendment to the United States Constitution as
interpreted by the United States Supreme Court in Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L.
Ed. 2d 403 (2004). More particularly, defendant argues the court's
imposition of parole supervision for life under N.J.S.A. 2C:43-
6.4(a) was based on its finding that he needs supervision to
protect the community and deter him from future criminal activity.
He contends the court's fact-finding impermissibly increased the
penal consequences of his conviction and therefore violated his
Sixth Amendment rights.2 We disagree.
Apprendi requires "[a]ny fact (other than a prior
conviction), which is necessary to support a sentence exceeding
1
The parties do not dispute that the imposition of parole
supervision for life is a penal consequence of defendant's
conviction. See State v. Perez, 220 N.J. 423, 442 (2015) (noting
the "penal nature" of parole supervision for life).
2
Defendant raises his constitutional challenge to N.J.S.A. 2C:43-
6.4(a) for the first time on appeal. Generally, we will not
consider an error that was not presented at trial unless it
concerns the trial court's jurisdiction or matters of substantial
public interest. State v. Robinson, 200 N.J. 1, 20 (2009). This
limitation on appellate review "is not limitless." Id. at 19.
Because defendant raises a constitutional issue, we exercise our
discretion to address the merits of his argument.
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the maximum authorized by the facts established by a plea of guilty
or a jury verdict must be admitted by the defendant or proved to
a jury beyond a reasonable doubt." United States v. Booker, 543
U.S. 220, 244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621, 650 (2005).
"In deciding the question of what facts must be subject to a jury
finding, 'the relevant inquiry is one not of form, but of
effect--does the required finding expose the defendant to a greater
punishment than that authorized by the jury's guilty verdict?'"
State v. Natale, 184 N.J. 458, 473 (2005) (quoting Apprendi, supra,
530 U.S. at 494, 120 S. Ct. at 2365, 147 L. Ed. 2d at 457).
As explained by our Supreme Court, Blakely defined "'the
'statutory maximum' for Apprendi purposes [as] the maximum
sentence a judge may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the defendant." Id.
at 476 (emphasis in original) (quoting Blakely, supra, 542 U.S.
at 302, 124 S. Ct. at 2537, 159 L. Ed. 2d 403). Under Blakely,
"the relevant 'statutory maximum' is not the maximum sentence a
judge may impose after finding additional facts, but the maximum
he may impose without any additional findings." Blakely, supra,
542 U.S. at 303-304, 124 S. Ct. at 2537, 159 L. Ed. 2d 403.
In Natale, the Court applied the principles in Apprendi and
Blakely and determined that "[a] judge is authorized to impose a
sentence within the range allowed by . . . the defendant's
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admissions at a guilty plea after waiving his right to jury trial."
Natale, supra, 184 N.J. at 481. The Court also held that "the
Sixth Amendment prohibits a judge from imposing a sentence greater
than that allowed by the jury verdict or by the defendant's
admissions at a plea hearing. Those are the constitutional
boundaries for the exercise of a judge's discretion at sentencing."
Id. at 482.
In State v. Pierce, 188 N.J. 155 (2006), the Court addressed
a challenge to the constitutionality of N.J.S.A. 2C:43-3(a), which
permits the imposition of a discretionary extended term sentence.
The Court determined that the standard for the imposition of an
extended term under the standard that had been established in
State v. Dunbar, 108 N.J. 80 (1987), was no longer constitutionally
viable under the principles in Apprendi. Pierce, supra, 188 N.J.
at 168-69. Under Dunbar, the imposition of a sentence within the
extended term range was dependent upon a court finding there was
a need to protect the public. Dunbar, supra, 108 N.J. at 91. The
Pierce Court determined such fact-finding went beyond the mere
finding of a defendant's prior conviction and therefore violated
the Sixth Amendment. Pierce, supra, 188 N.J. at 167-68.
To remedy the constitutional infirmities inherent in the
Dunbar paradigm, the Court established a different standard for
the imposition of a discretionary extended term sentence. Id. at
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168-69. The Court found that where a defendant's prior convictions
permit the imposition of a discretionary extended term sentence
under N.J.S.A. 2C:43-3(a), the convictions alone expose the
defendant to the maximum sentence within the extended term range.
Id. at 168. Therefore, judicial fact-finding related to the
protection of the public does not violate the principles in
Apprendi and Blakely by impermissibly increasing the defendant's
maximum sentencing exposure. Id. at 173-74. Fact-finding about
the protection of the public can be properly considered in imposing
a sentence up to the maximum within the sentencing range. Ibid.
The Court concluded that because there is no finding of fact
required to expose defendant to the maximum sentence within the
extended term sentencing range, the discretionary extended term
statute was constitutional under Apprendi and Blakely. Id. at 169.
The Court further found that the sentencing court could consider
the need to protect the public but because that finding no longer
determined "whether [the] defendant is subject to a sentence up
to the top of the extended-term range," and only would be
considered to determine a sentence within the permissible
sentencing range, application of N.J.S.A. 2C:43-3(a) did not
violate the defendant's Sixth Amendment rights. Id. at 170
(emphasis in original).
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Here, the singular fact supporting defendant's exposure to
the special sentence of parole supervision for life is his
conviction for second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(b)(5)(a). N.J.S.A. 2C:43-6.4(a) expressly
authorizes the imposition of parole supervision for life upon a
defendant's conviction of second-degree endangerment under
N.J.S.A. 2C:24-4(b)(5)(a). Defendant was exposed to imposition
of parole supervision for life based solely on his conviction. No
additional judicial fact-finding was required.
N.J.S.A. 2C:43-6.4(a) permits the court to withhold
imposition of parole supervision for life where it finds the
"sentence is not needed to protect the community or deter the
defendant from future criminal activity." The judge's fact-
finding concerning the need to protect the community and deter
defendant from future criminal activity, however, did not
determine defendant's exposure to parole supervision for life.
Rather, the court's fact-finding constituted a permissible
exercise of discretion in determining if defendant should not
receive parole supervision for life – a sentence for which he was
exposed solely due to his conviction. As the Court found in
Pierce, a court may engage in fact-finding to determine a sentence
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less than the maximum allowable based on a defendant's conviction.3
Pierce, supra, 188 N.J. at 169-70. That is precisely what the
judge did here.
III.
Defendant also challenges the court's finding that parole
supervision was required to protect the community and deter
defendant from engaging in future criminal activity. He asserts
that the record shows that he never sexually abused any of his
daughters and that the court's finding he had a "willingness to
exploit his children for his own sexual gratification" is
unsupported by the record. Defendant also claims that parole
supervision for life is unnecessary because he will otherwise be
monitored based on his compliance with the requirements of his
Megan's Law sentence.
We review a "trial court's 'sentencing determination under a
deferential [abuse of discretion] standard of review.'" State v.
Grate, 220 N.J. 317, 337 (2014) (quoting State v. Lawless, 214
N.J. 594, 606 (2013)); see also Pierce, supra, 188 N.J. at 169-70
(2006) ("On appellate review, the court will apply an abuse of
3
In Pierce, the Court determined the defendant's exposure to the
maximum sentence within the extended term sentencing range did not
involve impermissible judicial fact-finding because it was based
solely on the defendant's conviction for which he was being
sentenced and his prior convictions. Pierce, supra, 188 N.J. at
169.
11 A-3276-15T4
discretion standard to the sentencing court's explanation for its
sentencing decision within the entire range."). We affirm a
sentence if: (1) the trial court followed the sentencing
guidelines; (2) its findings of fact and application of aggravating
and mitigating factors were based on competent, credible evidence
in the record; and (3) the application of the law to the facts
does not "shock[] the judicial conscience." State v. Bolvito, 217
N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)). When reviewing a trial court's sentencing decision, we
will not "substitute [our] judgment for that of the sentencing
court." State v. Fuentes, 217 N.J. 57, 70 (2014).
Having reviewed the record, we discern no basis to reverse
the court's imposition of parole supervision for life. Contrary
to defendant's claim, the court did not find he sexually abused
his children or rely upon such a finding to support its sentencing
decision. The record shows, however, defendant discussed his
children in sexually graphic ways with strangers on the internet,
and expressed interest in having sexual relations with his
daughters as part of a course of conduct that included his
transmission of child pornography. When considered in that
context, the court's determination that defendant willingly
exploited his children for his own sexual gratification is
supported by the record.
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Defendant's conduct, as found by the judge and supported by
the record, demonstrated an active interest in having sexual
relations with children. In his explicit and repeated
communications with strangers, he expressed that interest and also
distributed child pornography. The court was aware it imposed a
Megan's Law sentence, but further determined parole supervision
for life was required for the protection of the community and to
deter defendant from future criminal activity. The court's
determination is supported by the record and does not shock our
judicial conscience.
Affirmed.
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