State v. WaltersState v. Walters
- Reporters:
- ,
- Before:
- Shebell, Wallace, Kleiner J.A.D.
The opinion of the court was delivered by KLEINER, J.A.D.
On January 22, 1992, the Atlantic County grand jury returned two indictments against defendant William A. Walters. Indictment 92-01-0182-A-CP charged defendant as follows: count one, theft by deception, in violation of
Indictment 92-01-0181-A-CP charged defendant and William Ortiz with a series of criminal acts committed between July 7, 1991 and July 17, 1991, relating to the use of two credit cards in the name of Joseph Flatley at Harrah‘s Marina Hotel/Casino, Trump‘s Castle Hotel and Casino and Trump‘s Taj Mahal Casino Resort. The indictment specifically charged one count of conspiracy, in violation of
While the Atlantic County indictments were pending trial, defendant was indicted by the federal grand jury in the United States District Court, Eastern District of Pennsylvania, for one count of conspiracy to defraud the United States, in violation of
On November 9, 1993, defendant filed a motion to dismiss the two Atlantic County indictments based upon his interpretation of
On January 14, 1994, defendant entered into a plea agreement in Atlantic County. In exchange for a plea of guilty to count one of Indictment No. 92-01-0182-A-CP, charging theft by deception in violation of
On January 28, 1994, defendant was sentenced to a five year term of imprisonment to be served consecutively to the sentence imposed in federal court. He was ordered to pay $30 to the Violent Crimes Compensation Board.
On appeal, defendant asserts two points of error:
POINT I
THE TRIAL COURT ERRED IN HOLDING THAT THE STATUTORY BAR TO MULTIPLE PROSECUTIONS UNDER N.J.S.A. 2C:1-11 DID NOT PRECLUDE THE IMPOSITION OF ADDITIONAL PUNISHMENT FOR CRIMINAL
CONDUCT THAT WAS PREVIOUSLY PUNISHED IN CONNECTION WITH A FEDERAL PROSECUTION. POINT II
THE TRIAL COURT ABUSED ITS DISCRETION IN DISREGARDING FEDERAL LAW AND HOLDING THAT APPELLANTS SENTENCE OF IMPRISONMENT FOR A STATE OFFENSE WAS TO BE SERVED CONSECUTIVELY TO A SENTENCE IMPOSED BY A FEDERAL COURT FOR THE SAME CRIMINAL CONDUCT.
We now affirm both the decision on defendant‘s motion to dismiss and the sentence imposed.
I
When conduct constitutes an offense within the concurrent jurisdiction of this State and of the United States, a prosecution in the District Court of the United States is a bar to a subsequent prosecution in this State under the following circumstances:
a. The first prosecution resulted in an acquittal or in a conviction, or in an improper termination as defined in section 2C:1-9 and the subsequent prosecution is based on the same conduct, unless (1) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil or (2) the offense for which the defendant is subsequently prosecuted is intended to prevent a substantially more serious harm or evil than the offense of which he was formerly convicted or acquitted or (3) the second offense was not consummated when the former trial began; or
b. The former prosecution was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted.
[Ibid.]
The
the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court.
[Ibid.]
The bar to subsequent prosecution applies only where the two prosecutions are based on the “same conduct” and only where the proofs necessary to the two prosecutions meet the statutory test for congruence. Cannel, New Jersey Criminal Code Annotated, comment 3 on
Courts must apply the plain language of a statute. Town of Morristown v. Woman‘s Club of Morristown, 124 N.J. 605, 610, 592 A.2d 216 (1991); State v. Churchdale Leasing, Inc., 115 N.J. 83, 101, 557 A.2d 277 (1989); State v. Butler, 89 N.J. 220, 226, 445 A.2d 399 (1982); Mechanical Contractors Ass‘n v. State, 255 N.J. Super. 488, 495, 605 A.2d 743 (App.Div. 1992). The plain language of
The consideration and use by the federal court of facts pertinent to a pending state indictment cannot transmute enhancement of sentence into a “prosecution” or “conviction” within the meaning of
Guideline § 1B1.3 requires courts to take account of “relevant conduct” — conduct that, very roughly speaking, corresponds to those actions and circumstances that courts typically took into account when sentencing prior to the Guidelines’ enactment. Past practice, and authoritative case law, indicates that the Constitution does not, as general matter, forbid such consideration.
[United States v. Wright, 873 F.2d 437, 441 (1st Cir.1989).]
The federal judiciary has uniformly held that where a defendant is indicted for conduct, including “relevant conduct” previously used to enhance the length of his or her sentence for a separate federal offense, he or she may be subject to successive prosecution for the same conduct without violating the federal double jeopardy clause.
We additionally note that our Code of Criminal Justice specifically permits an evaluation of unindicted conduct in sentencing. By way of illustration only,
(3) [t]he risk that the defendant will commit another offense;
....
(5) [t]here is a substantial likelihood that the defendant is involved in organized criminal activity;
(6) [t]he extent of the defendant‘s prior criminal record and the seriousness of the offenses of which he has been convicted[.]
[Ibid.]
In sentencing, we have authorized the sentencing judge to consider a defendant‘s juvenile record, State v. Tanksley, 245 N.J. Super. 390, 396, 585 A.2d 973 (App.Div. 1991); a defendant‘s prior conviction which has been set aside under the Federal Youth Corrections Act (
The observations of the Supreme Court in Marzolf and in Green are particularly illuminating. In Marzolf, the Court noted:
Although defendant is to be regarded as a first offender, it does not follow that the infraction which has resulted in supervisory treatment loses all relevance for sentencing purposes. It may well have a bearing upon a defendant‘s culpability and awareness of the criminal implications of his conduct, factors relating to amenability to rehabilitation as well as the appropriateness of deterrence. At sentencing there should be presented “the fullest information possible concerning the defendant‘s life and characteristics.” Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, 1342 (1949). The defendant‘s background, including prior arrests or juvenile offenses, should be fully exposed, even though no convictions have ensued.
And in Green, the Court noted:
Other state and federal courts have also held that arrest records may be properly considered at sentencing, and several federal circuit courts have broadly concluded that evidence of past unresolved and unproved charges of criminal conduct not resulting in a conviction may be considered in imposing sentence.
[Green, supra, 62 N.J. at 567-68, 303 A.2d 312 (footnotes omitted).]
II
Defendant contends the trial court abused its discretion by imposing a sentence consecutive to the federal sentence he was then serving.
Our review of the record reflects that the trial judge meticulously adhered to the standards applicable to sentence articulated in State v. Roth, 95 N.J. 334, 364-65, 471 A.2d 370 (1984) and State v. Hodge, 95 N.J. 369, 471 A.2d 389 (1984).
The court specifically referred to
The identification of aggravating factors immediately followed the argument of the Deputy Attorney General, who emphasized:
This Defendant has, since 1977, been subjected to the monitering [sic], if you will, of Federal authorities. That monitering [sic] has done nothing. He has a total of — out of a fifteen year period, he has a total of thirteen convictions. He has experienced probation, parole and incarceration. Every time he‘s been on probation, he violates it. Every time he‘s been on parole, he violates it and sometimes, your Honor, if you look at his record, he‘s not out even a month when he‘s busy doing other crimes.
The court identified as mitigating factors
The court specifically stated:
Therefore, a sentence in excess of the presumptive is appropriate. It would not be appropriate that the sentence be concurrent with a sentence imposed in the Federal Court in Pennsylvania for unrelated offenses. There should be no free crimes and New Jersey is clearly entitled to impose punishment for offenses committed in this State. While the extent of his record might arguably justify a parole disqualifier in view of the Mitigating Factors, the fact that the Defendant has no histories of violent conduct and the fact that the conduct in the present case was considered as an enhancement factor in the Federal case, this leads to the conclusion that in the interest of justice, a parole disqualifier may be dispensed with.
The court did not specifically refer to State v. Yarbough, 100 N.J. 627, 498 A.2d 1239 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986), but it seems clear that the court‘s statement “There should be no free crimes,” is a reference to Yarbough, which articulated the standard to determine whether sentences should be consecutive or concurrent. Those standards are:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense....1
Defendant specifically argues that the court‘s reliance on Yarbough was error as it disregarded Breeden v. New Jersey Dep‘t of Corrections, 132 N.J. 457, 625 A.2d 1125 (1993). We disagree. As noted in Breeden:
This case concerns the question whether another state‘s prison sentence, expressly intended to be concurrent with a prior uncompleted New Jersey sentence, is to be credited as time served against the uncompleted New Jersey sentence even though served in the foreign state.
[Id. at 459, 625 A.2d 1125 (emphasis added).]
The dispute in Breeden arose from a Department of Corrections decision which denied Breeden credit against an uncompleted sentence in New Jersey for time served in California on an intervening sentence in California committed while Breeden was an escapee from the New Jersey prison system. The Supreme Court determined that concepts of comity applied in determining what effect to give the “expressly intended to be concurrent” sentence of California. Id. at 466-69, 625 A.2d 1125. That decision has no bearing on our analysis as to whether defendant‘s sentence was properly imposed as consecutive to the federal
The trial court took particular note of the prior federal sentence. The judge specifically concluded that a period of parole ineligibility would not be imposed on defendant due to the federal sentence, and due to the fact that the federal court had already enhanced defendant‘s sentence based upon the criminal acts committed in New Jersey.
Our standard of appellate review is to affirm a sentence “as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.” State v. O‘Donnell, 117 N.J. 210, 215, 564 A.2d 1202 (1989). This is particularly so where the sentence does not “shock[] the judicial conscience.” Id. at 216, 564 A.2d 1202 (citing State v. Roth, 95 N.J. 334, 365, 471 A.2d 370 (1984)). Defendant‘s sentence does not shock the judicial conscience.
The trial court decision denying defendant‘s motion to dismiss and defendant‘s sentence imposed are affirmed.