STATE OF NEW JERSEY, Plaintiff-Respondent, v. ZAIRE R. EVANS, a/k/a DARRYL MILTON, Defendant-Appellant.
DOCKET NO. A-3718-21 A-0298-22
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
February 12, 2024
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.
Argued January 10, 2024 – Decided February 12, 2024
Before Judges Vernoia and Gummer.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1288.
Troy A. Archie argued the cause for appellant (Afonso Archie Law, PC, attorneys; Troy A. Archie, on the briefs).
Rachel Maureen Lamb, Assistant Prosecutor, argued the cause for respondent (Grace C. MacAulay, Camden County Prosecutor, attorney; Rachel Maureen Lamb, of counsel and on the brief).
PER CURIAM
In connection with a May 4, 2001 shooting, a Camden County grand jury returned an indictment charging defendant with first-degree murder,
Before trial, the first-degree robbery charge (Count Four) was dismissed. The trial judge handwrote the following on the first page of a copy of the indictment:
Indictment Amended 9/16/03
- Robbery count dismissed
- Reference to robbery in Count 2 deleted
- Counts 5-6-7-8 renumbered as 4-5-6-7.
So ordered.
The judge placed his signature below that handwritten language and marked up the copy of the indictment accordingly, crossing out the word “robbery” in Count Two and renumbering Counts Five, Six, Seven, and Eight. The verdict sheet submitted to the jury referenced the numbers of the counts of the indictment as amended by that handwritten order, meaning Counts Five, Six, Seven, and Eight were renumbered as Counts Four, Five, Six, and Seven, respectively.
A jury convicted defendant of aggravated manslaughter,
The trial judge imposed on defendant an aggregate term of imprisonment of fifty years, with a thirty-five-year period of parole ineligibility. The judge issued a written statement of reasons for the sentence, including a footnote in which he referenced the pre-trial dismissal of the robbery count and the subsequent renumbering of the original Counts Five through Eight. Referencing the counts as they had been numbered on the verdict sheet, the judge merged the conviction for possession of a weapon for unlawful purpose (Count Four on the verdict sheet) with the aggravated-manslaughter conviction (Count One) and the aggravated-manslaughter conviction (Count One) and burglary conviction (Count Three) with the felony-murder conviction (Count Two) and imposed a forty-year term of imprisonment with a thirty-year period of parole ineligibility on the felony-murder conviction (Count Two), a five-year term of imprisonment with a 2.5-year period of parole ineligibility on the unlawful-possession
The judge directed that defendant would serve the sentences imposed for the felony-murder conviction (Count Two) and the certain-persons conviction (Count Seven on the verdict sheet) consecutively, the sentence imposed for the unlawful-possession conviction (Count Five on the verdict sheet) concurrently with the sentences imposed for the felony-murder conviction (Count Two) and the certain-persons conviction (Count Seven on the verdict sheet), and the sentence imposed for the endangering conviction (Count Six on the verdict sheet) consecutively to the sentence imposed for the felony-murder conviction (Count Two) and concurrently with the sentence imposed for the certain-persons conviction (Count Seven on the verdict sheet).
The judge memorialized the convictions and sentences in a November 20, 2003 judgment of conviction (the First JOC). In the “final charges” section of the First JOC, the judge referenced the counts using the numbers set forth in the indictment. In another section, he described the sentences using the numbers
Defendant appealed, arguing, among other things, his sentence was manifestly excessive. In a 2005 opinion, we affirmed the convictions and the sentences except for the sentences on the endangering and certain-persons convictions. State v. Evans, No. A-3398-03 (App. Div. Dec. 23, 2005). We held a resentencing was required on those convictions and directed the judge on remand also to reconsider the consecutive nature of the sentence imposed on the certain-persons conviction. Id. at 5.
At the beginning of the resentencing hearing, the judge explained to defendant, who was represented by counsel, that he had the right to speak during the hearing if he wanted to do so. During the hearing, the judge asked counsel to let him know if defendant wanted to address the court regarding the resentencing. Defense counsel advised the judge defendant had indicated he did not want to address the court. After hearing argument and considering the applicable aggravating and mitigating factors, the judge imposed the same time
On February 3, 2006, the judge issued a written opinion on the resentencing, in which he utilized the count numbering used on the verdict sheet and addressed defendant‘s arguments regarding mitigating factors, and a new judgment of conviction (the Second JOC), in which he utilized in the “final charges” section the count numbering used on the indictment and, in the discussion section, the count numbering used on the verdict sheet. Despite those differences, like the First JOC, the Second JOC accurately reflected the substantive crimes for which defendant had been convicted, including that he had been convicted on the charge of third-degree unlawful possession of a weapon in violation of
Within months of that decision, defendant appealed the new sentence and petitioned for post-conviction relief (PCR). The court dismissed without prejudice the PCR petition given the pending appeal. Defendant withdrew the appeal and filed a new PCR petition. In that petition, defendant argued, among other things, that the court and his counsel had failed to explain adequately “his
In a September 28, 2017 letter, the then-presiding judge of the criminal division of the Camden vicinage advised a Department of Corrections “classification officer” of the death of the judge who had presided over defendant‘s trial and had sentenced him. The presiding judge stated:
I have reviewed the file in this case and am providing the following guidance. The confusion stems from the fact that original count 4 (armed robbery) was dismissed on the State‘s motion prior to trial and original counts 5 through 8 were re-numbered as counts 4 through 7. So the “final charges” section on page 1 of the Judgment of Conviction (JOC) is accurate as it reflects the numbering of the counts as they appear in the Indictment. However, the numbering used on page 2 of the JOC is based on the re-numbering of original counts 5 through 8 and this is incorrect. Enclosed is an amended JOC that uses the correct numbering on page 2. I have not changed the Statement of Reasons because that document clearly explains the re-numbering in footnote 1 on the first page of the document.
Nothing in the record before us indicates what prompted the presiding judge to write to the Department of Corrections officer. The record also is not clear as to which “amended JOC” was enclosed in the presiding judge‘s letter.
During October of 2017, defense counsel sent a letter to the Department of Corrections officer asking for “copies of the sentencing documents presently at issue” and a letter to the presiding judge noting “the JOC was recently amended” and asking that “defendant be permitted to comment prior to final amendment of the JOC.” In a November 12, 2017 letter to the case manager, defense counsel asked for a hearing regarding the Third JOC, citing
Defendant moved to modify his sentence. On February 6, 2018, the same judge who had entered the Fourth JOC entered a “Change of Judgment of Conviction & Order for Commitment 02/05/2018: VACATES AMENDED JOC OF 11/15/2017” (the Fifth JOC). As the title indicates, the judge vacated the Fourth JOC and stated that the Third JOC “remain[ed] in full force and effect.” In the “final charges” section of the Fifth JOC, the judge used the count numbering set forth in the original indictment and incorrectly cited
On appeal, defendant argues:
I. THE JUDGMENT OF CONVICTION WAS ILLEGALLY MODIFIED OUTSIDE APPELLANT‘S PRESENCE
II. THE JUDGMENT OF CONVICTION STILL REMAINS INCORRECT DESPITE NUMEROUS MODIFICATIONS BY THE COURT OUTSIDE OF APPELLANT‘S PRESENCE AND IN VIOLATION OF APPELLANT‘S DUE PROCESS RIGHTS
III. THE APPELLANT IS ENTITLED TO A REMAND ON SENTENCING[.]
“There are two categories of illegal sentences: those that exceed the penalties authorized for a particular offense, and those that are not authorized by law. . . . Those two categories of illegal sentences have been ‘defined narrowly.‘” State v. Hyland, 238 N.J. 135, 145 (2019) (quoting State v. Murray, 162 N.J. 240, 246 (2000)). Defendant does not claim the sentences imposed on him exceeded the penalties authorized by law for the crimes for which he was convicted. Instead, he asserts the purported failure “to consider any post-conviction mitigation” and his absence from “any post-appeal modification” rendered “his sentencing proceeding illegal.” We disagree.
In his merits brief, defendant complains first about the resentencing the trial judge conducted in 2006 after we remanded the case in 2005, contending “it was conducted without a sentencing hearing as [the judge] merely issued an opinion.” In the interest of completeness and clarity of the record, we address that argument, even though defendant long ago withdrew his appeal of that new sentence. The record contradicts defendant‘s characterization of the February 3, 2006 proceeding. The transcript of the proceeding shows the judge began the hearing by making sure defendant understood he had “the right to speak at this resentencing, if he so desires“; heard argument from counsel, including defense
In the Fifth JOC, the judge vacated the Fourth JOC and held the Third JOC was “in full force and effect.” Defendant does not challenge the vacation of the Fourth JOC or the judges’ use in the Third JOC and the Fifth JOC of the count numbering set forth in the original indictment. He complains that he was not given an opportunity to address the court before the Third JOC and the Fifth JOC were issued and that those judgments of conviction incorrectly reference subparagraph (d) of
However, the correction of a clerical error in a judgment of conviction is not the equivalent of a sentencing or resentencing of a defendant.
Clerical mistakes in judgments, orders . . . and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal.
A “reconsideration of a sentence” may “require a court to conduct a new sentencing proceeding[,]” but “‘mere corrections of technical errors‘” don‘t “‘require sentencing anew.‘” State v. Robinson, 217 N.J. 594, 611 (2014) (quoting State v. Randolph, 210 N.J. 330, 350 (2012)). In Robinson, the court recognized that the remand at issue was “not [a] remand simply to alter the judgment of conviction to reflect a merger of certain counts” but “require[d] an entirely new sentencing proceeding.” Ibid.; see also State v. Funderburg, 225 N.J. 66 (2016) (finding we had “properly remanded for correction of the judgment of conviction to address” the sentencing judge‘s improper merging of some weapons charges); State v. Williams, 219 N.J. 89 (2014) (“Because the judgment of conviction contains a typographical error in the grading of the two gun convictions, this matter must be remanded to the trial court for this technical correction.“). In correcting a technical error on a judgment of conviction, the court is not reconsidering the sentence imposed on the defendant. The years of imprisonment to be served remain the same. Accordingly, a defendant‘s right to be present at a new sentencing is not triggered by the correction of a scrivener‘s error on a judgment of conviction.
And that‘s what the judges were doing in issuing the Third JOC and the Fifth JOC. For the sake of consistency and clarity, they were adopting and putting into place the count numbering used on the original indictment. They weren‘t changing the crimes of which defendant had been convicted or the years of imprisonment for which he was to serve for those convictions. They weren‘t sentencing him “anew.” Randolph, 210 N.J. at 350. Thus, defendant was not entitled to be present or heard at a new sentencing hearing and was not entitled to consideration as a youthful offender under State v. Lane, 251 N.J. 84.
Affirmed and remanded with a direction the trial court issue a corrected judgment of conviction. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION