STATE OF NEW JERSEY VS. WAYNE C. MONK (14-06-0868, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2197-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WAYNE C. MONK, a/k/a
MARRANO MONK,
Defendant-Appellant.
____________________________
Submitted November 28, 2018 - Decided July 9, 2019
Before Judges Fuentes and Accurso.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 14-06-0868.
Joseph E. Krakora, Public Defender, attorney for
appellant (Al Glimis, Designated Counsel, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Carol M. Henderson, Assistant Attorney
General, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant pled guilty pursuant to a negotiated agreement with the State
to second degree distribution of oxycodone. In exchange, the State agreed to
dismiss the remaining counts in the indictment and recommend that defendant
be sentenced to a term of six years, subject to a discretionary three-year period
of parole ineligibility. The court sentenced defendant accordingly.
Defendant appealed this sentence pursuant to the summary process
codified in Rule 2:9-11. After considering defendant's arguments, we remanded
the matter for the court to resentence defendant without consideration of
aggravating factor eleven, N.J.S.A. 2C:44-1(a)(11). See State v. Dalziel, 182
N.J. 494, 502 (2005). We also directed the sentencing judge to perform the
analysis required under N.J.S.A. 2C:43-6(b) to determine whether the
imposition of a discretionary three-year period of parole ineligibility is
warranted. State v. Wayne Monk, No. A-2140-16 (App. Div. May 3, 2017).
On remand, a different judge followed our instructions and ultimately
resentenced defendant to the same six-year term of imprisonment, subject to a
discretionary three-year period of parole ineligibility.
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Defendant again appealed under the process in Rule 2:9-11, but at his
request, the appeal was transferred to the plenary calendar. In this appeal,
defendant raises the following arguments:
POINT I
THE IMPOSITION OF A DISCRETIONARY
PERIOD OF PAROLE INELIGIBILITY IS
UNCONSTITUTIONAL PURSUANT TO ALLEYNE
AND MUST BE STRICKEN BY THIS COURT. THE
NEW JERSEY SUPREME COURT RECENTLY
GRANTED CERTIFICATION TO DECIDE
WHETHER THE TYPE OF PAROLE DISQUALIFIER
IMPOSED IN THIS CASE IS UNCONSTITUTONAL
PURSUANT TO ALLEYNE. (Not raised below)
A. Alleyne's Edict That Any Fact That Increases The
Mandatory Minimum Is An "Element" That Must Be
Submitted To The Jury Apples [sic] To Periods Of
Parole Ineligibility.
B. Mr. Monk's Sentence.
POINT II
THE SENTENCING COURT ERRED IN VACATING
JUDGE STEELE'S FINDINGS THAT MITIGATING
FACTORS TWO AND THREE WERE APPLICABLE.
Defendant also raises the following arguments in his pro se
supplemental brief.
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POINT I
TRIAL COUNSEL DEPRIVED MONK OF HIS
SIXTH AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WHEN THEY BOTH
FAILED TO ARGUE MITIGATING FACTORS
SUPPORTED BY THE RECORD. (Not raised below)
POINT II
TRIAL COUNSEL DEPRIVED MONK OF HIS
SIXTH AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WHEN HE FAILED TO
MAKE APPLICATION [sic] FOR DRUG COURT.
Defendant argues that the sentence imposed by the trial court under
N.J.S.A. 2C:43-6(b) violated his Sixth Amendment rights as construed by the
United States Supreme Court in Alleyne v. United States, 570 U.S. 99 (2013)
and Apprendi v. New Jersey, 530 U.S. 466 (2000). Our Supreme Court recently
addressed and settled this issue in State v. Kiriakakis, 235 N.J. 420 (2018).
Writing for the Court, Justice Albin explained:
Alleyne permits judges, in the exercise of their
discretion, to take into consideration various factors
relating both to the offense and offender "in imposing a
judgment within the range prescribed by statute." 570
U.S. at 116 (emphasis omitted) (quoting Apprendi, 530
U.S. at 481). The aggravating factors found by the
court here were not the functional equivalent of the
elements of an offense. This case does not involve a
judicial finding of an aggravating factor that required
the imposition of a mandatory-minimum sentence, a
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scenario that would violate the right to a jury trial. See
State v. Grate, 220 N.J. 317, 334-35 (2015).
[Id. at 425.]
However, we agree with defendant that the resentencing judge erred when
she refused to find mitigating factors N.J.S.A. 2C:44-1(b)(2) and (3), which the
original sentencing judge found applied in this case. Our order entered pursuant
to Rule 2:9-11 limited the scope of the court's authority on remand to
determining the appropriate sentence without consideration to aggravator factor
N.J.S.A. 2C:44-1(a)(11). In this context, the resentencing judge did not have
the authority to reassess the applicability of the mitigating factors found by the
previous judge. State v. Randolph, 210 N.J. 330, 351-54 (2012). We thus again
remand this matter for the sentencing judge to resentence defendant after
considering mitigating factors N.J.S.A. 2C:44-1(b)(2) and (3).
Reversed and remanded. We do not retain jurisdiction.
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