STATE OF NEW JERSEY VS. IRONE WATFORD (94-06-0904, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0005-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IRONE WATFORD, a/k/a TYRONE
WATFORD, and IRONE WETFORD,
Defendant-Appellant.
_______________________________
Submitted September 9, 2019 – Decided September 16, 2019
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Indictment No. 94-06-
0904.
Irone Watford, appellant pro se.
Esther Suarez, Hudson County Prosecutor, attorney
for respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Irone Watford appeals from a Criminal Part order denying his
motion to correct an illegal sentence. We affirm.
We briefly recount the lengthy procedural history of this case. Arising
out of a November 4, 1993 incident in Jersey City, defendant was charged in a
ten-count indictment with armed robbery, N.J.S.A. 2C:15-1; robbery, N.J.S.A.
2C:15-1; carjacking, N.J.S.A. 2C:15-2; kidnapping, 2C:13-1(b); aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(3); aggravated sexual assault, N.J.S.A.
2C:14-2(a)(4); sexual assault, N.J.S.A. 2C:14-2(c)(1); criminal sexual contact,
N.J.S.A. 2C:14-3(b); possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(d); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d).
Defendant was convicted of all ten counts following a jury trial in 1997.
Defendant was over the age of twenty-one when he committed the crimes
in 1993. He had previously been convicted of second-degree robbery in 1988
and third-degree distribution of a controlled dangerous substance (CDS) within
1000 feet of school property in 1991. He was over the age of eighteen when he
committed the prior crimes. The State moved to sentence defendant to an
extended term as a persistent offender pursuant to N.J.S.A. 2C:43-7 and N.J.S.A.
2C:44-3(a). The trial court granted the motion. The court found defendant met
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the statutory definition of a persistent offender and was eligible for discretionary
extended sentencing.
On September 22, 1997, after appropriate mergers of several counts,
defendant was sentenced to an aggregate term of life plus eighty years
imprisonment with a sixty-year parole disqualifier. 1 He was also sentenced to
community supervision for life.
We affirmed defendant's conviction and sentence on direct appeal. State
v. Watford, No. A-1544-97 (App. Div. Mar. 31, 2000). The Supreme Court
denied certification. State v. Watford, 165 N.J. 487 (2000).
In 2000, defendant filed his first petition for post-conviction relief (PCR),
which was denied in January 2002. We affirmed the denial. State v. Watford,
No. A-3753-01 (App. Div. June 16, 2003). The Supreme Court denied
certification. State v. Watford, 178 N.J. 34 (2003).
1
For the first-degree aggravated sexual assault, defendant was sentenced to
life imprisonment subject to parole ineligibility for twenty-five years. For the
first-degree kidnapping, defendant was sentenced to a term of thirty years
subject to parole ineligibility for fifteen years. For the first-degree carjacking,
defendant was sentenced to a term of thirty years subject to parole ineligibility
for ten years. For first-degree armed robbery, defendant was sentenced to a
term of twenty years subject to parole ineligibility for ten years. The sentences
ran consecutively. Each of the extended sentences were within the ranges set
by N.J.S.A. 2C:43-7.
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In April 2009, defendant filed his second PCR petition, also styled as a
motion to correct an illegal sentence, which was denied in May 2009, and again
in July 2009, without an evidentiary hearing. We affirmed the denial. State v.
Watford, No. A-5737-08 (App. Div. May 5, 2010). The Supreme Court denied
certification. State v. Watford, 205 N.J. 15 (2010).
In June 2012, defendant filed his third PCR petition. The trial court found
no "good cause" to justify appointment of counsel "because this matter is
procedurally barred under [Rule] 3:22-4" and alleged no "substantial issue of
fact or law," and dismissed the petition. We affirmed the dismissal. State v.
Watford, No. A-2219-12 (App. Div. Feb. 19, 2014). The Supreme Court denied
certification. State v. Watford, 219 N.J. 629 (2014).
Defendant filed a motion to correct an illegal sentence in September 2015.
We affirmed the denial of the motion on a sentencing calendar pursuant to Rule
2:9-11, substantially for the reasons set forth in the trial court's January 29, 2016
oral decision. State v. Watford, No. A-3561-15 (App. Div. Aug. 2, 2016). The
Supreme Court denied certification. State v. Watford, 229 N.J. 8 (2017).
Defendant did not confine his attempts to overturn his conviction and
sentence to proceedings in State court. He also filed two habeas corpus petitions
in the United States District Court for the District of New Jersey. Both habeas
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petitions were denied. Watford v. Bartkowski, Civ. Action No. 11-0319 (SDW)
(D.N.J. July 14, 2011), certificate of appealability denied, C.A. No. 11–3082 (3d
Cir. Oct. 3, 2011); Watford v. Hendricks, Civ. Action No. 04-1388 (SDW)
(D.N.J. Apr. 27, 2007), certificate of appealability denied, C.A. No. 07–3203
(3d Cir. Mar. 10, 2008). The United States Supreme Court denied certiorari.
Watford v. Warren, 566 U.S. 909 (2012); Watford v. Ricci, 556 U.S. 1171
(2009).
On April 6, 2017, defendant filed a second motion to correct an illegal
sentence based on a challenge to the constitutionality of the persistent offender
sentencing statute, N.J.S.A. 2C:44-3, which was denied on June 15, 2018.
Defendant claimed the statute was unconstitutionally vague and deprived him of
his right to due process and equal protection of the laws. This appeal followed.
Defendant argues:
THE TRIAL COURT ERRED BY DENYING
APPELLANT'S MOTION CHALLENGING THE
CONSTITUTIONALITY OF SUBSECTION (a) OF
N.J.S.A. 2C:44-3 SINCE BOTH (N.J.S.A. 2C:43-7
AND 2C:44-3(a)) ARE CLEARLY
UNCONSTITUTIONAL ON ITS FACE AND AS
APPLIED THE STATUTES VIOLATES THE
CONSTITUTIONAL DUE PROCESS AND EQUAL
PROTECTION RIGHTS OF A DEFENDANT.
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Whether defendant's sentence is illegal or unconstitutional is "an issue of
law subject to de novo review." State v. Drake, 444 N.J. Super. 265, 271 (App.
Div. 2016) (citing State v. Pomianek, 221 N.J. 66, 80 (2015)).
Although defendant's motion was filed more than nineteen years after he
was sentenced, it is not time barred. The law imposes no time limit on a
challenge to an illegal or unconstitutional sentence. State v. Acevedo, 205 N.J.
40, 47 n.4 (2011); R. 3:21-10(b)(5); R. 3:22-12. "A motion may be filed and an
order may be entered at any time" to correct an illegal sentence. R. 3:21-
10(b)(5); see State v. Schubert, 212 N.J. 295, 309 (2012).
We first consider whether N.J.S.A. 2C:44-3(a) is facially vague. Criminal
statutes that are impermissibly vague are unconstitutional.
Clear and comprehensible legislation is a fundamental
prerequisite of due process of law, especially where
criminal responsibility is involved. Vague laws are
unconstitutional . . . because unclear or
incomprehensible legislation places both citizens and
law enforcement officials in an untenable position.
Vague laws deprive citizens of adequate notice of
proscribed conduct, and fail to provide officials with
guidelines sufficient to prevent arbitrary and erratic
enforcement.
[State v. Afanador, 134 N.J. 162, 170 (1993)
(emphasis added) (quoting Town Tobacconist v.
Kimmelman, 94 N.J. 85, 118 (1983)).]
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"A law is void as a matter of due process if it is so vague that persons 'of
common intelligence must necessarily guess at it meaning and differ as to its
application.'" Town Tobacconist, 94 N.J. at 118 (quoting Connally v. Gen.
Constr. Co., 269 U.S. 385, 391 (1926)). Thus, a criminal statute is
unconstitutionally vague and violates due process if it fails "to provide notice
and warning to an individual that his or her conduct could subject that individual
to criminal or quasi-criminal prosecution." State v. Hoffman, 149 N.J. 564, 581
(1997) (citing Screws v. United States, 325 U.S. 91, 101-02 (1945)).
Pursuant to N.J.S.A. 2C:44-3, "[t]he court may, upon application of the
prosecuting attorney, sentence a person who has been convicted of a crime of
the first, second or third degree to an extended term" if the person is found to be
a persistent offender as defined by N.J.S.A. 2C:44-3(a). The statute provides
the following definition of a persistent offender:
A persistent offender is a person who at the time of
the commission of the crime is 21 years of age or
over, who has been previously convicted on at least
two separate occasions of two crimes, committed at
different times, when he was at least 18 years of age,
if the latest in time of these crimes or the date of the
defendant's last release from confinement, whichever
is later, is within 10 years of the date of the crime for
which the defendant is being sentenced.
[N.J.S.A. 2C:44-3(a).]
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The trial court correctly concluded defendant satisfied those criteria and was
eligible for sentencing to extended terms. The sentencing ranges fo r extended
terms are set forth in N.J.S.A. 2C:43-7.
We find no merit in defendant's argument that N.J.S.A. 2C:44-3(a) is
facially vague. The statute is neither unclear nor incomprehensible. The statute
clearly and unambiguously defines the term "persistent offender." It provides
citizens with adequate notice and warning that his or her conduct could subject
them to the extended sentencing implications for persistent offenders. Persons
of common intelligence would not guess at its meaning or differ as to its
application. The statute also provides officials with guidelines to prevent
arbitrary and erratic enforcement. Put simply, the statute is not
unconstitutionally vague.
We next address defendant's claim that only violent crimes should be
considered by a sentencing court when evaluating a defendant's persistent
offender status. We disagree. Nothing in the plain language of the statute or its
legislative history supports that claim. On the contrary, persistent offender
status can be based on convictions of any crimes of the first, second, or third
degree if they occurred within the statute's time and age limitations. Had the
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Legislature intended to limit sentencing as a persistent offender to only violent
criminals it would have so stated. It did not. 2
Indeed, the original proposed version of the Criminal Code required the
court to find "an extended term is necessary for the protection of the public,"
"[t]he reference to 'protection of the public' was not included in the final version
of the statute." State v. Pierce, 188 N.J. 155, 164 (2006). The Court overturned
the requirement that the sentencing court find the defendant's commitment for a
discretionary extended term is necessary for the protection of the public imposed
by State v. Dunbar, 108 N.J. 80, 90-91 (1987) and reaffirmed by State v.
Pennington, 154 N.J. 344 (1998). Pierce, 188 N.J. at 158, 169-70.
Defendant misconstrues the two-step process undertaken by a sentencing
court when considering an application for an extended sentence. The sentencing
court must first undertake an objective examination of the defendant's prior
record of conviction and age at the time of those convictions, to determine
whether it renders him or her statutorily eligible for extended-term sentencing.
2
In contrast, the so-called Three Strikes Law, N.J.S.A. 2C:43-7.1(a), requires
two predicate convictions for any of the following violent offenses: murder,
aggravated manslaughter, first-degree kidnapping, armed or violent sexual
assault, robbery, or carjacking.
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Id. at 162, 168-69.3 Analysis of the nature of a defendant's prior convictions,
including whether they were for violent offenses, "must be regarded as, separate
and distinct from the court's determination" of statutory eligibility for an
extended sentence, and is undertaken after eligibility is determined. Id. at 168.
Determination of eligibility for extended term sentencing does not involve
assessing whether the defendant presents a risk to the public because his prior
crimes were for violent offenses. "Consideration of the protection of the public
takes place during [the second] phase of the sentencing process," when the court
assesses "the aggravating and mitigating factors, including the deterrent need to
protect the public," and determines the appropriate term within the extended
term range. Ibid.
In sum, N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3(a) are not impermissibly
vague or unconstitutional as applied. Defendant was not deprived of his right
to due process or equal protection of the laws under either the United States
Constitution or the New Jersey Constitution.
3
Similarly, determination of whether a defendant meets the requirements for a
mandatory enhanced-term sentence is also "based on an objective
determination—the existence of prior convictions." State v. Thomas, 188 N.J.
137, 151 (2006).
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To the extent we have not addressed defendant's remaining arguments
they are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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