STATE OF NEW JERSEY v. KEVIN M. LAMBORN (19-07-0593, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 25, 2022
• Docket: A-0740-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0740-19

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KEVIN M. LAMBORN,

Defendant-Respondent.

Argued September 23, 2020 – Decided February 25, 2022

Before Judges Accurso and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 19-07- 0593.

Patrick F. Galdieri, II, Assistant Prosecutor, argued the cause for appellant (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Patrick F. Galdieri, II, of counsel and on the brief).

Joshua Altman argued the cause for respondent (Benedict and Altman, attorneys; Joshua Altman, on the brief). The opinion of the court was delivered by

ACCURSO, J.A.D.

This is the State's appeal from the probationary sentence imposed on

defendant Kevin M. Lamborn on the State's motion for a Graves Act, N.J.S.A.

2C:43-6(c), waiver, following defendant's guilty plea to second-degree

unlawful possession of a handgun and fourth-degree unlawful possession of

hollow nose bullets. Because the assignment judge failed to consider the

presumption of incarceration prescribed by N.J.S.A. 2C:44-1(d) before

sentencing defendant to a probationary term on the second-degree Graves Act

offense, we vacate the sentence and remand for a new sentencing hearing,

rejecting defendant's claim that resentencing is barred by double jeopardy

principles.

Defendant is a commercial truck driver, who resides in Delaware.

Following a 2019 incident in Monroe in which the open door of another trailer

reportedly dinged defendant's tractor-trailer parked along the drive leading into

Costco, defendant was charged with second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a handgun for

an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); fourth-degree aggravated assault

by pointing a handgun, N.J.S.A. 2C:12-1(b)(4); third-degree terroristic threats,

A-0740-19 2 N.J.S.A. 2C:12-3(a); fourth-degree possession of hollow nose bullets, N.J.S.A.

2C:39-3(f); and fourth-degree possession of a large-capacity magazine,

N.J.S.A. 2C:39-3(j). Defendant was also charged in a complaint-summons

with two disorderly-persons offenses, possession of marijuana, N.J.S.A.

2C:35-10(a)(4), and possession of drug paraphernalia, N.J.S.A. 2C:36-2. He

was forty-two at the time.

Defendant waived indictment and entered a negotiated guilty plea to an

accusation charging him with second-degree unlawful possession of a handgun

and fourth-degree unlawful possession of hollow nose bullets in exchange for

the State's agreement to seek a Graves Act waiver and recommend an

aggregate three-year prison term with one year of parole ineligibility pursuant

to N.J.S.A. 2C:43-6.2, and dismissal of all other charges. Defendant's pre-

sentence report reflected assault convictions in 1996 and 2011, and a 1996

CDS conviction. As permitted by the plea agreement, defendant urged several

mitigating factors and argued for imposition of a non-custodial probationary

sentence.

At sentencing on October 11, 2019, the assignment judge did not address

the presumption of incarceration applicable to the second-degree weapons

charge pursuant to N.J.S.A. 2C:44-1(d). He found aggravating factor three,

A-0740-19 3 "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-

1(a)(3), and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), "[t]he need for

deterring the defendant and others from violating the law." The judge also

found mitigating factor eight, "[t]he defendant's conduct was the result of

circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8), and mitigating factor

ten, "[t]he defendant is particularly likely to respond affirmatively to

probationary treatment," N.J.S.A. 2C:44-1(b)(10). Finding the aggravating

and mitigating factors were in equipoise, the judge sentenced defendant to five

years' probation on the gun charge, 1 conditioned on 180 days in the county jail

and to a concurrent one-year probationary term for possession of the hollow

nose bullets. He dismissed the remaining charges and imposed all appropriate

penalties. The judge granted defendant's request for a "deferred turn in date,"

requiring him to report the Monday following Friday's sentencing.

The State timely filed its notice of appeal from the sentence on October

21, 2019. Neither the court nor either of the parties took steps to implement

1 Although defendant pleaded guilty to the unlawful possession of a handgun, the judgment of conviction lists the charge as possession of a handgun for an unlawful purpose. This should be corrected on remand. A-0740-19 4 the provisions of Rule 2:9-3(c)2 following the State's filing. 3 Defendant was

granted county parole on December 20, 2019, which he completed on February

1, 2020, and began serving his probationary sentence. We initially heard the

State's appeal and defendant's motion to dismiss on double jeopardy grounds

on a sentencing calendar. We denied defendant's motion to dismiss without

prejudice and ordered the appeal placed on a plenary calendar for briefing and

argument.

2 Rule 2:9-3(c) provides:

(c) Stay Following Appeal by the State. Notwithstanding paragraphs (a) and (b) of this rule, execution of sentence shall be stayed pending appeal by the State pursuant to N.J.S.A. 2C:44-1(f)(2). Whether the sentence is custodial or non-custodial, bail pursuant to R. 2:9-4 shall be established as appropriate under the circumstances. A defendant may elect to execute a sentence stayed by the State's appeal, but such election shall constitute a waiver of the right to challenge any sentence on the ground that execution has commenced. 3 In its notice of appeal, the State answered "yes" to the question "[i]s defendant incarcerated" and "no" to the question "[w]as bail granted or the sentence or disposition stayed." In its case information statement, the State represented it had confirmed with the judge on the day of the filing that he would not be filing an amplification pursuant to Rule 2:5-1(b). The State further represented it made service on the court and defendant's counsel of its notice of appeal and case information statement on the filing date. A-0740-19 5 The State contends defendant must be resentenced because the

assignment judge failed to consider the presumption of incarceration

applicable to defendant's second-degree conviction before imposing a

probationary sentence. We agree.

Our Supreme Court in addressing Graves Act waivers in State v. Nance,

held unequivocally that "[w]hen the defendant has been convicted of a first-

degree or second-degree Graves Act offense, the assignment judge, or the

presiding judge as his or her designee, must consider the presumption of

incarceration set forth in N.J.S.A. 2C:44-1(d)." 228 N.J. 378, 397 (2017).

Failure to do so would not only result in unacceptable sentencing disparities

for first- or second-degree non-Graves Act offenders "but would also

substantially undermine the deterrent objective of the Graves Act" itself. Id. at

396.

Accordingly, the assignment judge, or designee, is without authority to

choose to sentence a defendant convicted of a first- or second-degree Graves

Act offense to a probationary term under N.J.S.A. 2C:43-6.2 without having

first decided, considering "the character and condition of the defendant, . . .

that [his] imprisonment would be a serious injustice which overrides the need

to deter such conduct by others," N.J.S.A. 2C:44-1(d). The Court in Nance

A-0740-19 6 also reminded that "[t]he 'serious injustice' exception to the presumption of

imprisonment applies only in 'truly extraordinary and unanticipated

circumstances.'" 228 N.J. at 395 (quoting State v. Jabbour, 118 N.J. 1, 7

(1990)).

The "residuum of power" the Legislature has left to the sentencing court

under N.J.S.A. 2C:44-1(d) not to imprison "where it would be entirely

inappropriate to do so," State v. Roth, 95 N.J. 334, 358 (1984), is only

"legitimately exercised in those 'truly extraordinary and unanticipated' cases

where the 'human cost' of punishing a particular defendant to deter others from

committing his offense would be 'too great,'" State v. Evers, 175 N.J. 355, 389

(2003) (quoting State v. Rivera, 124 N.J. 122, 125 (1991)). "Absent a proper

finding of 'serious injustice' that outweighs the need for general deterrence, a

trial court must impose a custodial sentence." Id. at 388 (citing Roth, 95 N.J.

at 358-59).

In light of those pronouncements of our Supreme Court, we cannot

accept defendant's argument that "the assignment judge who is tasked with

imposing sentences in Graves Act [w]aiver cases is familiar with the standards

by which he can and cannot impose sentence" and, therefore, must have made

the critical "serious injustice" finding, although it is nowhere mentioned in the

A-0740-19 7 sentencing transcript. 4 As the State notes, the judge found the aggravating and

mitigating factors to be in equipoise here. Because the presumption of

incarceration can only be overcome when there is "clear and convincing

evidence that there are relevant mitigating factors present to an extraordinary

degree," which cumulatively "so greatly exceed any aggravating factors that

imprisonment would constitute a serious injustice overriding the need for

deterrence," id. at 393-94, we are satisfied beyond any question that the

assignment judge failed to follow the sentencing guidelines in imposing a

probationary sentence for this second-degree Graves Act offense. See

Jabbour, 118 N.J. at 6-8.

We also reject defendant's argument that double jeopardy principles bar

his resentence. Defendant acknowledges the State appealed the sentence

within the ten-day period before the sentence became final pursuant to

N.J.S.A. 2C:44-1(f)(2). Nevertheless, he argues he was not advised by the

court at sentencing that the sentence was not final; the State expressed no

intention to file an appeal; and he was "never provided a stay or permitted to

apply for bail pending appeal" pursuant to Rule 2:9-3(c). In the absence of

4 We also note the presumption of imprisonment cannot be satisfied by a term of imprisonment imposed as a condition of probation, as here. See State v. O'Connor, 105 N.J. 399, 409-11 (1987). A-0740-19 8 notice or bail being set pursuant to Rule 2:9-4, defendant contends he cannot

be considered as having "elect[ed] to execute a sentence stayed by the State's

appeal." R. 2:9-3(c). Instead, he contends he commenced his sentence, and

thus the Double Jeopardy clause bars the State's appeal. We disagree.

As we noted in Evers, "[f]or double jeopardy to attach, defendant's . . .

sentence had to become final." State v. Evers, 368 N.J. Super. 159, 168 (App.

Div. 2004). N.J.S.A. 2C:44-1(f)(2) makes clear that when the sentencing

"court imposes a noncustodial or probationary sentence upon conviction for a

crime of the first or second degree, [the] sentence shall not become final for 10

days in order to permit the appeal of the sentence by the prosecution."

Accordingly, defendant's sentence did not become final by operation of law

before the State filed its timely appeal on the tenth day following defendant's

sentencing.

As we further explained in Evers, the State's timely appeal of a

defendant's sentence pursuant to N.J.S.A. 2C:44-1(f)(2) also effects a

mandatory stay of sentence under Rule 2:9-3. 368 N.J. Super. at 168-69. Rule

2:9-3(c) provides "execution of sentence shall be stayed pending appeal by the

State pursuant to N.J.S.A. 2C:44-1(f)(2)." As in Evers, because defendant's

"sentence was not final during the ten-day period following its imposition,

A-0740-19 9 N.J.S.A. 2C:44-1(f)(2), it lacked finality after the ten-day period because of

the Rule 2:9-3(d) stay. Because a final sentence never became effective,

double jeopardy never attached." Evers, 368 N.J. Super. at 169.

Defendant contends Evers "is not a sweeping holding." Yet, the

defendant in Evers made the same argument that defendant makes here — that

jeopardy attached because the State did not move promptly for a stay

following the filing of its appeal. Ibid. We rejected that argument in Evers,

finding the stay became effective pursuant to Rule 2:9-3 when the State filed

its notice of appeal, and more to the point, that the defendant "was charged

with notice of the stay and had no reasonable expectation of finality." Evers,

368 N.J. Super. at 169.

Defendant contends the trial court was required to have advised him at

sentencing of the State's right to appeal the sentence pursuant to N.J.S.A.

2C:44-1(f)(2) and of the election and waiver provision of Rule 2:9-3(c), as we

held was required in State v. Williams, 203 N.J. Super. 513, 518 (App. Div.

1985). But the Court abrogated that aspect of our holding in Williams in State

v. Sanders, 107 N.J. 609, 617 n.7 (1987). In Sanders, the Court made clear

"the Code of Criminal Justice expressly provides for prosecutorial appeal of a

lenient sentence" under N.J.S.A. 2C:44-1(f)(2), and because "[d]efendants are

A-0740-19 10 charged with notice of the terms of this provision," they can have no legitimate

expectation in the finality of the sentence when pronounced. 107 N.J. 620

(explaining double jeopardy analysis turns on the expectation of finality a

defendant may have in his sentence). See also United States v. DiFrancesco,

449 U.S. 117, 136 (1980) (holding when the prosecution has a statutory right

to review a sentence, the defendant "is charged with knowledge of the statute

and its appeal provisions, and has no expectation of finality in his sentence

until the appeal is concluded or the time to appeal has expired").

We cannot find the failure to hold a bail hearing pursuant to Rule 2:9-4

changed defendant's expectation of finality. Defendant is charged with

knowledge of the court rules as well as the statute. See State v. Nwobu, 139

N.J. 236, 257 (1995). Although Rule 2:9-3(c) provides that "bail pursuant to

R. 2:9-4 shall be established as appropriate under the circumstances," Rule

2:9-4 provides "the defendant . . . shall be admitted to bail on motion and

notice to the county prosecutor. . . ."

Defendant did not file a motion for bail despite notice of the State's

appeal of the sentence on the day it was filed and the ensuing stay of his

sentence pursuant to Rule 2:9-3(c). He was released on parole two months

later. In light of the stays of his sentence imposed by N.J.S.A. 2C:44-1(f)(2)

A-0740-19 11 and Rule 2:9-3(c), defendant never had reason to expect finality; the court's

failure to conduct a bail hearing defendant never sought does not change the

analysis. His failure to seek a bail hearing following the State's timely appeal

of his probationary sentence under the circumstances constitutes an election

under Rule 2:9-3(c), and a waiver of the right to contest his sentence on the

ground execution had commenced. 5

Because the assignment judge failed to consider the presumption of

incarceration applicable to defendant's second-degree Graves Act conviction

before imposing a probationary sentence, and defendant could never have had

a legitimate expectation in the finality of such sentence, we vacate the sentence

and remand for a new sentencing hearing. See State v. Randolph, 210 N.J.

330, 354 (2012). We do not retain jurisdiction.

Reversed and remanded.

5 We've previously noted the Rule "was amended to prevent the dismissal of an appeal by virtue of the execution of a sentence by making a stay mandatory when the State appeals pursuant to N.J.S.A. 2C:44-1(f)(2)." State v. Farr, 183 N.J. Super. 463, 471 n.1 (App. Div. 1982). A-0740-19 12