STATE OF NEW JERSEY VS. WAYNE E. MEYERS (01-09-1212, 01-11-1544, AND 17-09-0163, MERCER COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-3199-18
A-3926-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WAYNE E. MEYERS,
Defendant-Appellant.
_______________________
Submitted February 8, 2021 – Decided March 18, 2021
Before Judges Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment Nos. 01-09-1212,
01-11-1544, 17-09-0163.
Joseph E. Krakora, Public Defender, attorney for
appellant (Suzannah Brown, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah D. Brigham, Deputy Attorney
General, of counsel and on the briefs).
PER CURIAM
In these back-to-back appeals, which we consolidate solely for purposes
of issuing a single opinion, in a post-conviction relief (PCR) application,
defendant challenged the legality of a 2002 probationary sentence imposed after
he entered negotiated guilty pleas to second-degree drug related offenses that
subsequently rendered him statutorily ineligible for drug court on a 2017
indictment charging him with additional drug related offenses. In an order
entered on June 25, 2018, which was amended on October 24, 2018, the PCR
court rejected defendant's petition and denied his application to withdraw the
2002 guilty pleas. In Docket No. A-3926-18, defendant appeals from the
October 24 order, raising the following point for our consideration:
POINT I
THE PCR COURT ERRED IN DENYING
[DEFENDANT'S] APPLICATION TO WITHDRAW
HIS GUILTY PLEAS BASED ON THE ILLEGALITY
OF THE PLEA AGREEMENT AND ILLEGAL
SENTENCE IMPOSED.
After the 2017 indictment was returned, defendant applied for and was
rejected from drug court because the 2002 convictions rendered him statutorily
ineligible pursuant to N.J.S.A. 2C:35-14(a)(6). In a June 25, 2018 order, the
trial court denied defendant's motion to appeal his drug court denial. Defendant
ultimately entered a negotiated guilty plea to a second-degree drug distribution
A-3199-18
2
charge contained in the 2017 indictment, and the resulting prison sentence,
which was imposed in accordance with the terms of the plea agreement, was
memorialized in a July 5, 2018 judgment of conviction (JOC). In Docket No.
A-3199-18, defendant appeals his drug court denial as well as the sentence
imposed under the 2017 indictment raising the following points for our
consideration:
POINT I
THE LOWER COURT ERRED IN DENYING
[DEFENDANT'S] MOTION TO APPEAL DRUG
COURT DENIAL BECAUSE IT WAS A PATENT
ABUSE OF DISCRETION TO REJECT HIM BASED
ON CONVICTIONS FOR WHICH HE RECEIVED
AN ILLEGAL PLEA AGREEMENT AND
SENTENCE.
POINT II
[DEFENDANT'S] SENTENCE WAS MANIFESTLY
EXCESSIVE AND BASED UPON IMPROPER
FINDING AND WEIGHING OF AGGRAVATING
AND MITIGATING FACTORS. (NOT RAISED
BELOW)
For the reasons that follow, we affirm in both appeals.
I.
By way of background, on September 18, 2001, defendant was charged in
Indictment No. 01-09-1212 with third-degree possession of a controlled
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dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree
possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3)
(count two); third-degree possession of CDS with intent to distribute within
1000 feet of school property, N.J.S.A. 2C:35-7 (count three); and second-degree
possession of CDS with intent to distribute within 500 feet of a public facility,
N.J.S.A. 2C:35-7.1 (count four). The charges stemmed from police seizing
heroin from defendant's person on May 20, 2001, after observing him engaging
in drug dealing activities.
About two months later, on November 15, 2001, defendant was charged
in Indictment No. 01-11-1544 with third-degree possession of CDS, N.J.S.A.
2C:35-10(a)(1) (count one); second-degree possession of CDS with intent to
distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2) (count two); second-degree possession
of CDS with intent to distribute within 500 feet of a public facility, N.J.S.A.
2C:35-7.1 (count three); third-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(5)(a) (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-
2(a)(3)(a) (count five). Those charges stemmed from police seizing
crack/cocaine which defendant discarded on August 10, 2001, when he fled from
police officers who had observed him engage in a hand to hand drug transaction.
A-3199-18
4
Although defendant was accepted into drug court, he withdrew his
application and, on July 23, 2002, entered negotiated guilty pleas to counts three
and four of Indictment No. 01-09-1212 and counts two and five of Indictment
No. 01-11-1544. Under the terms of the plea agreement, the State agreed to
recommend an aggregate sentence of five years' probation, conditioned upon
successful completion of a long-term in-patient drug treatment program, and
dismissal of the remaining counts of the 2001 indictments. Because the plea
agreement recommended a probationary disposition for second-degree offenses,
the judge accepted defendant's guilty pleas conditioned upon her "review [of
the] presentence report." The judge noted that if the presentence report
convinced her that the agreement was "in the interests of justice," then she would
sentence defendant accordingly. Otherwise, she would allow defendant to
withdraw his guilty pleas and proceed "as if it was never entered."
At the sentencing hearing conducted on October 4, 2002, upon reviewing
the presentence report, the judge sentenced defendant in accordance with the
plea agreement. After the judge confirmed that defendant had no prior
indictable convictions, had "a limited employment history[,]" "attribute[d his
criminal] conduct to ongoing drug use," and was enrolled in "a[n] in[-]patient"
drug treatment program, the judge made the following findings:
A-3199-18
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Aggravating factors: I find that given your addiction
and the pattern and lifestyle that you have adopted, that
there is a risk that you will commit another offense. I've
also considered the need for deterring you and others
from violating the law. And the imposition of a fine
and penalty without imposing a term of imprisonment
would be perceived by you or others as merely part of
the cost of doing business.
On the mitigating side, I have considered that this
is your first upper-court conviction, but that you have a
juvenile record so I've given that minimum weight.
I also find that if you successfully complete the
[drug treatment p]rogram, there is some likelihood . . .
that you will respond affirmatively to probationary
treatment.
Accordingly, I find that the aggravating factors
outweigh the mitigating factors, although not
substantially.
. . . [I]t is normally my philosophy to allow
defendants with a drug problem to have an opportunity
to address it, and I will give you that opportunity. But
I have to tell you, that the offenses to which you've
entered guilty pleas are serious offenses . . . . [S]o I
want to tell you right at the outset that if you violate
any of the terms of probation, . . . you can be charged
with violating probation. And if you're found guilty of
that, you can then be sentenced to the maximum term
for these offenses. And you've pled guilty to a couple
of second-degree offenses, which carry a maximum
term of ten years.
See N.J.S.A. 2C:44-1(a)(3), (9), (11); N.J.S.A. 2C:44-1(b)(7), (10).
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In 2005, defendant violated his probation and, on September 16, 2005,
was sentenced to continued probation conditioned upon serving eight months in
the county jail. The following year, defendant was arrested on new drug
charges, which were subsequently charged in Indictment No. 06-11-1105. The
new charges resulted in another violation of probation (VOP) on the 2001
indictments. In February 2007, after being accepted into drug court, defendant
pled guilty to third-degree possession of CDS with intent to distribute within
1000 feet of a school zone under Indictment No. 06-11-1105, and was found
guilty of the VOP for the 2001 indictments. On February 23, 2007, defendant
was sentenced to an eighteen-month term of special probation in drug court on
the VOP and a concurrent five-year term of special probation in drug court on
the school zone charge, both conditioned on serving six months in the county
jail. On June 28, 2013, defendant completed his sentence and graduated from
drug court.
Four years later, on September 29, 2017, defendant was charged in
Indictment No. 17-09-0163 with second-degree distribution of CDS, N.J.S.A.
2C:35-5(a)(1), (b)(2), and 2C:35-5(c) (count two); second-degree conspiracy to
distribute CDS, N.J.S.A. 2C:5-2, 2C:35-5(a)(1), (b)(1), and 2C:35-5(c) (count
three); third-degree distribution of CDS within 1000 feet of school property,
A-3199-18
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N.J.S.A. 2C:35-7 (count four); second-degree distribution of CDS within 500
feet of a public facility, N.J.S.A. 2C:35-7.1 (count five); and third-degree
possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count six).
Thereafter, defendant submitted an application for entry into drug court.
On February 5, 2018, the trial court entered an order denying defendant's
admission because he was "statutorily ineligible for [d]rug [c]ourt pursuant to
N.J.S.A. 2C:35-14(a)(6)"1 based on his prior convictions under the 2001
indictments.
On March 5, 2018, defendant filed a PCR application challenging the
second-degree convictions under the 2001 indictments that now rendered him
statutorily ineligible for drug court. Defendant argued that the probationary
sentence imposed on his second-degree drug charges was illegal because the
sentencing judge failed to make the requisite findings to overcome the
presumption of incarceration applicable to second-degree offenses. Defendant
also argued that he was denied effective assistance of counsel because his
attorney failed to advise him that his guilty pleas could bar him from drug court
in the future.
1
Under N.J.S.A. 2C:35-14(a)(6), a person is ineligible for drug court if he has
"been previously convicted on two or more separate occasions of crimes of the
first or second degree," other than designated offenses that do not apply here.
A-3199-18
8
On June 15, 2018, following oral argument, the PCR judge denied
defendant's application to vacate the second-degree convictions or withdraw his
corresponding guilty pleas. In an oral opinion, the judge first addressed
defendant's contention that "his sentence [was] unlawful because the sentencing
court's findings [did] not support the imposition of a probationary term" and did
not overcome the presumption of incarceration for second-degree offenses. See
N.J.S.A. 2C:44-1(d) (requiring the imposition of a sentence of imprisonment
upon conviction for "a crime of the first or second degree . . . unless, having
regard to the character and condition of the defendant, [the court] is of the
opinion that the defendant's imprisonment would be a serious injustice which
overrides the need to deter such conduct by others").
The PCR judge acknowledged that despite finding that the "aggravating
factors predominated" over the "mitigating factors," the sentencing co urt
nonetheless "sentenced . . . defendant to probation." However, the PCR judge
determined that because defendant's claim for vacating his sentence rested on
"the sentencing court's findings[] concerning aggravating and mitigating
factors" and the "balancing of [the] factors," "[s]uch a challenge . . . should have
been made on direct appeal" and was "not cognizable as a claim for post-
conviction relief."
A-3199-18
9
In that regard, the judge relied on State v. Flores, 228 N.J. Super. 586, 595
(App. Div. 1988), where we explained that
[w]hile an "illegal" sentence is correctable at any time,
. . . this limited exception to the general rule should be
confined to cases in which the quantum of the sentence
imposed is beyond the maximum provided by law or
where the term set by the court is not authorized by any
statutory provision.
In contrast, we determined in Flores that "questions concerning the adequacy of
the sentencing court's findings and the sufficiency of the weighing process
employed should be addressed only by way of direct appeal." Ibid. The PCR
judge concluded that because the sentence did not "fall[] outside of the
maximum term," it was not illegal and, under Flores, should have been addressed
on direct appeal.
Next, the judge rejected defendant's ineffective assistance of counsel
(IAC) claim, finding defendant failed to show that either counsel's performance
was deficient under the standard set forth in Strickland v. Washington, 466 U.S.
668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J.
42, 49-53 (1987), or that he was prejudiced as required under the second prong
of the Strickland/Fritz test. The judge determined "defense counsel's
performance was hardly deficient" as "it [was] hard to imagine a more favorable
outcome for . . . defendant short of a dismissal." The judge also rejected
A-3199-18
10
defendant's claim "that defense counsel had a duty to warn him of the
consequences" of his plea in relation to drug court. In support, the judge pointed
out that defendant failed to "identif[y] any case law that impose[d] an
affirmative duty to apprise the defendant of the impact of his plea on any future
eligibility for [d]rug [c]ourt" and noted that "courts have held that there is no
constitutional requirement to explain the . . . possible or even potential
enhancement consequences of future abhorrent conduct."2 See State v.
Wilkerson, 321 N.J. Super. 219, 227 (App. Div. 1999) (concluding that defense
counsel's failure to advise his client "of possible or even potential enhancement
consequences of future aberrant conduct is not [IAC]").
Turning to the prejudice prong, the judge explained that "defendant has
failed to articulate or establish a reasonable probability he would have rejected
the plea offer for a probationary sentence and gone to trial." The judge pointed
out that given the number and severity of the charges, "the risks of going to trial
were significant." Thus, the judge found it was "incredible to believe . . .
defendant would have rejected a probationary offer simply to keep his options
2
The judge noted an exception to this rule for "enhanced penalties for second
or subsequent convictions" for "DWI offenses, motor vehicle thefts, . . . and
penalties for driving while suspended," none of which applied here. See e.g.
State v. Patel, 239 N.J. 424 (2019); State v. Gaitan, 209 N.J. 339, 381 (2012);
State v. Laurick, 120 N.J. 1 (1990).
A-3199-18
11
open for [d]rug [c]ourt just in case he accrued a future criminal conviction." See
State v. DiFrisco, 137 N.J. 434, 457 (1994) (holding that in order to establish
the Strickland prejudice prong to set aside a guilty plea based on IAC, a
defendant must show "that there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pled guilty and would have
insisted on going to trial") (alteration in original) (quoting Hill v. Lockhart, 474
U.S. 52, 59 (1985)); see also State v. Maldon, 422 N.J. Super. 475, 486 (App.
Div. 2011) ("'[T]o obtain relief on this type of claim, a [defendant] must
convince the court that a decision to reject the plea bargain'" and "insist on going
to trial" would have been "'rational under the circumstances'" and, "in fact, that
he probably would have done so[.]" (quoting Padilla v. Kentucky, 559 U.S. 356,
372 (2010) (alteration in original))).
Finally, the judge analyzed defendant's motion to withdraw his guilty
pleas under the four factors enunciated in State v. Slater, 198 N.J. 145, 157-58
(2009), namely, "(1) whether the defendant has asserted a colorable claim of
innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether withdrawal would result in
unfair prejudice to the State or unfair advantage to the accused." In denying
defendant's post-sentence plea withdrawal motion, the judge concluded "[t]his
A-3199-18
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[was] not a case of manifest injustice." See id. at 158 ("post-sentence motions
are subject to the 'manifest injustice' standard in Rule 3:21-1").
The judge explained:
First, [defendant] has not presented a colorable claim
of innocence, second, the nature and strength of
defendant's [reasons] for withdrawing are not entitled
to significant weight, . . . defendant has already served
the sentence, and . . . defendant is pressing this PCR
simply to become eligible for [d]rug [c]ourt and
circumvent the statutory bar.
In other words, he regrets the . . . . [c]ollateral
consequences of his plea. Thus he has not identified
any compelling, . . . fair or just reasons for withdraw[al]
. . . . Third, this is a plea agreement which certainly
tilts in favor of the State but this factor alone is not
significant.
Finally, the unfair prejudice to the State is
apparent as defendant pled guilty to this charge over
[fifteen] years ago. To put it mildly, it would be
exceptionally difficult for the State to prosecute this
case.
The judge noted further that because defendant "was admitted into [d]rug [c]ourt
on separate charges in 2007," and thereby previously "received the benefit of
[d]rug [c]ourt," a "denial of a second opportunity . . . does not constitute a denial
of fundamental fairness or result in any form of injustice."
A-3199-18
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The judge entered a memorializing order on June 25, 2018. 3 On the same
date, the judge entered an order denying "[d]efendant's motion to appeal his drug
court denial" based on the court's rejection of defendant's PCR challenge and
affirmation that the 2002 convictions rendered him statutorily ineligible.
Defendant ultimately entered a negotiated guilty plea to count two of Indictment
No. 17-09-0163, charging him with second-degree distribution of CDS
stemming from him selling more than one-half ounce of cocaine in 2016 to a
confidential informant. On June 29, 2018, defendant was sentenced in
accordance with the plea agreement to a prison term of seven years and two
months, with a forty-three month period of parole ineligibility. A conforming
judgment of conviction was entered on July 5, 2018, and these appeals followed.
II.
In both appeals, defendant argues the PCR judge "erred in denying [his]
PCR [application] because he established that his conviction[s] should be set
aside based on the illegal sentence provided for in the plea agreement and
imposed by the sentencing court." Defendant reiterates his contention that "[he]
should have been permitted to withdraw his guilty pleas" because "the
3
The order was amended on October 24, 2018, to correct the indictment
numbers.
A-3199-18
14
sentencing court did not impose a sentence of imprisonment as was
presumptively required for second degree crimes under N.J.S.A. 2C:44-1(d)"
and "[t]here was no legal basis for the court to impose a probationary sentence."
According to defendant, had the PCR judge ruled correctly and permitted
defendant to vacate "his guilty pleas . . . on the two second[-]degree charges,"
he would have been "eligible for drug court" under the 2017 indictment. Thus,
defendant's inter-related arguments in both appeals center on the propriety of
the judge's decision denying his PCR application. 4
In State v. Thomas, we reiterated that:
Illegal sentences are "(1) those that exceed the
penalties authorized by statute for a particular offense
and (2) those that are not in accordance with the law, or
stated differently, those that include a disposition that
is not authorized by our criminal code." "In other
words, even sentences that disregard controlling case
law or rest on an abuse of discretion by the sentencing
court are legal so long as they impose penalties
authorized by statute for a particular offense and
include a disposition that is authorized by law."
[459 N.J. Super. 426, 434 (App. Div. 2019) (first
quoting State v. Schubert, 212 N.J. 295, 308 (2012);
then quoting State v. Hyland, 238 N.J. 135, 146
(2019)).]
4
Defendant does not appear to dispute that if his 2002 convictions stand, he is
statutorily ineligible for drug court for the 2017 indictment.
A-3199-18
15
In Thomas, the State sought to appeal the imposition of a probationary
sentence on a defendant convicted of third-degree aggravated assault stemming
from a domestic violence incident. Id. at 430. Although the sentencing judge
found aggravating factor fifteen based on the fact that "[t]he offense involved
an act of domestic violence . . . and the defendant committed at least one act of
domestic violence on more than one occasion," N.J.S.A. 2C:44-1(a)(15), the
judge rejected the State's reliance on "the statutory presumption of
incarceration" contained in N.J.S.A. 2C:44-1(d) to support its position that a
sentence of imprisonment was statutorily mandated. Thomas, 459 N.J. Super at
431.
We noted that "N.J.S.A. 2C:44-1(d) imposes a presumption of
incarceration when a defendant is convicted of a third-degree crime and the trial
court finds aggravating factor fifteen applies," and that the presumption could
only "be overcome if the trial judge finds, after considering the defendant's
'character and condition,'" that "incarceration would cause a 'serious injustice
which overrides the need to deter such conduct by others.'" Id. at 434-35. We
also acknowledged that a "'[s]erious injustice' is generally difficult for a
defendant to prove and a defendant must show he or she is 'so idiosyncratic that
A-3199-18
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incarceration . . . for the purposes of general deterrence is not warranted. '" Id.
at 435 (quoting State v. Jarbath, 114 N.J. 394, 408-09 (1989)).
However, in Thomas, we rejected the State's characterization of the
sentence as "illegal" based on its contention that "defendant failed to show he
was 'idiosyncratic'" as well as its position that "the judge applied inappropriate
facts" and failed to "adequately explain" why incarceration would cause
defendant a "serious injustice." Ibid. We concluded that "[e]ven if the court's
reasoning was inadequate, that deficiency did not render the sentence illegal "
because "sentences authorized by law but premised on an abuse of discretion are
not illegal . . . ." Ibid. (quoting Hyland, 238 N.J. at 147). See also State v.
Balfour, 135 N.J. 30, 41 (1994) ("[T]he presence of a guilty plea and a plea
agreement can be an important factor to be weighed in the sentencing decisions"
and "when properly justified by the circumstances, . . . does not demonstrate a
trial court's abuse of its sentencing discretion.").
Likewise, here, we agree with the PCR judge and reject defendant's
contention that the plea agreement and resulting sentence were illegal. Because
N.J.S.A. 2C:44-1(d) authorizes the imposition of a probationary sentence on a
second-degree offense if the statutory criteria are met, the disposition is clearly
authorized by law. Further, as in Thomas, even if the sentencing court's
A-3199-18
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reasoning in imposing the probationary sentence was inadequate, "that
deficiency did not render the sentence illegal." 459 N.J. Super. at 435. "A
finding to the contrary would conflate sentence illegality with judicial abuse of
discretion, and undermine [our Supreme] Court's consistently narrow construct
of which sentences it deems illegal." Hyland, 238 N.J. at 147. Thus, because
our "jurisprudence makes clear that sentences authorized by law but premised
on an abuse of discretion are not illegal," ibid., we find that the 2002 sentence
was not illegal and agree with the PCR judge that defendant's claim is "not
cognizable as a claim for post-conviction relief." 5
In the alternative, defendant argues that his bargained-for Brimage6
sentence7 should be "modified" because it "shocks the conscience." Defendant
5
Defendant does not expressly argue that the PCR judge erred in rejecting his
claim based on IAC or in denying his post-sentence motion to withdraw his 2002
guilty pleas under Slater. However, in the interest of completeness, we affirm
those decisions for the sound reasons expressed by the judge. Nonetheless, we
note that failure to advance an argument effectively waives that argument on
appeal. See N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501,
505 n.2 (App. Div. 2015) ("An issue that is not briefed is deemed waived upon
appeal.").
6
State v. Brimage, 153 N.J. 1 (1998).
7
The State "bargained away its right to seek a mandatory extended term [under
N.J.S.A. 2C:43-6(f)] as a part of its negotiated plea agreement with defendant."
State v. Courtney, 243 N.J. 77, 88-89 (2020).
A-3199-18
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asserts the judge's finding of aggravating factors "lacked the necessary
qualitative analysis," and his failure to find mitigating factor eleven "due to the
hardship of a lengthy prison sentence on his dependents" was error.
We review sentences "in accordance with a deferential standard," State v.
Fuentes, 217 N.J. 57, 70 (2014), and acknowledge "that appellate courts should
not 'substitute their judgment for those of our sentencing courts.'" State v. Cuff,
239 N.J. 321, 347 (2019) (quoting State v. Case, 220 N.J. 49, 65 (2014)). Thus,
we will
affirm the sentence unless (1) the sentencing guidelines
were violated; (2) the aggravating and mitigating
factors found by the sentencing court were not based
upon competent and credible evidence in the record; or
(3) "the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).]
"While the sentence imposed must be a lawful one, the court's decision to
impose a sentence in accordance with the plea agreement should be given great
respect, since a 'presumption of reasonableness . . . attaches to criminal
sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super.
61, 71 (App. Div. 1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)). See
A-3199-18
19
also Fuentes, 217 N.J. at 70-71 ("A sentence imposed pursuant to a plea
agreement is presumed to be reasonable . . . .").
Here, the judge found aggravating factors three, six, and nine based on
defendant's prior criminal record, particularly his prior drug related convictions
and his prior failed attempt at drug treatment. See N.J.S.A. 2C:44-1(a)(3) ("[t]he
risk that . . . defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(6)
("[t]he extent of . . . defendant's prior criminal record and the seriousness of the
offenses of which he has been convicted"); N.J.S.A. 2C:44-1(a)(9) ("[t]he need
for deterring . . . defendant and others from violating the law"). The judge also
determined there were no mitigating factors, rejecting defendant's proffer of
mitigating factor eleven. See N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of
the defendant would entail excessive hardship to the defendant or the defendant's
dependents").
In that regard, the judge acknowledged that defendant had "four children"
ranging "in age from [fifteen] to six," and that the mother of three of the children
was deceased. The judge noted that those three children were "residing with
[defendant's] mother" and "the fourth child [was] in the custody of the child's
mother." However, according to the judge, while it was "a very unfortunate
situation," it did not justify finding mitigating factor eleven given the existence
A-3199-18
20
of "a support arrearage of a bit more than [$2000]" and defendant's assertion
that "part of the reason for the drug sales was that he needed to support the
children."
Notwithstanding the overwhelming aggravating factors and dearth of
mitigating factors, the judge determined that "[t]he negotiated sentence" was
"within the authorized range," "fair," and "in the interest of justice ," and
sentenced defendant accordingly. Applying our deferential standard of review,
we are satisfied that the judge's findings are amply supported by the record, that
the sentence comports with the guidelines, and that the sentence does not reflect
an abuse of discretion or shock our judicial conscience.
Affirmed.
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