State of New Jersey v. Luis S. Manso

• Court: New Jersey Superior Court Appellate Division
• Decided: February 10, 2025
• Docket: A-1137-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1137-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS S. MANSO,

Defendant-Appellant. ________________________

Argued January 21, 2025 – Decided February 10, 2025

Before Judges Sabatino, Jacobs and Jablonski.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-11- 4417.

Joshua M. Nahum argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Alan L. Zegas and Joshua M. Nahum, on the briefs).

Shep A. Gerszberg, Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens II, Essex County Prosecutor, attorney; Frank J. Ducoat, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Luis S. Manso appeals from the November 1, 2023 order of

the Law Division denying his motion to correct an illegal sentence. We

affirm.

I.

We discern the following facts and procedural history from the court

record.

In November 1998, defendant and nine co-defendants were indicted and

charged in eighteen counts with six different crimes against four victims, two

of whom were killed. All defendants were charged with four counts of second -

degree conspiracy to commit kidnapping, N.J.S.A. 2C:5–2 and 2C:13–1; four

counts of first-degree kidnapping, N.J.S.A. 2C:13–1(b); four counts of second-

degree conspiracy to commit murder, N.J.S.A. 2C:5–2 and 2C:11–3; two

counts of murder, N.J.S.A. 2C:11–3(a)(1) and (2); two counts of felony

murder, N.J.S.A. 2C:11–3(a)(3); and two counts of attempted murder, N.J.S.A.

2C:5–1 and 2C:11–3. A jury convicted defendant of all counts.

At defendant's sentencing hearing in April 2000, the trial judge

specifically directed counsel to address and argue their positions "with regard

to the appropriateness of concurrent versus consecutive sentences."

In her oral sentencing decision, the trial judge stated:

A-1137-23 2 [I] will begin with the sentences for murder. I had to decide . . . whether the sentences should run consecutively or concurrently. As to the murders, this was not a decision I took lightly. I have reviewed the [Yarbough1] criteria, one of which is that there should be no free crimes in a system for which the punishment shall fit the crime. It is a much easier sentence to impose obviously where the stakes are not as high. Nonetheless, I have a responsibility to do what I feel is just under the law. And where there are two victims and two decedents, obviously the stakes for [defendant] are extremely high just by virtue of the restrictions on sentencing for murder . . . minimum of thirty years without eligibility for parole is where the [c]ourt is to start going anywhere up to life sentences.

I can not say in this case that the [c]ourt is prepared to tell [the] victim[s'] mother here that one of her son's li[ves]doesn't count as the other. I realize the offenses were committed during the course of conduct that culminated in the events in the park that clearly were committed on separate days. They clearly weren't separated in terms of the times they were served and certainly not separated in terms of the places they occurred. But the key point for me is that they required separate acts of violence. There are situations where given the right set of facts . . . that can not as easily be said as it can be said here. There was a specific intention directed at both of these people by separate people acting under orders. There was a motivation toward each of these people. What happened was intended to happen and it required that they each be dealt with separately. And they were. The [c]ourt feels for that reason it would be inappropriate to suggest not even only to [defendant] but to anyone else who might be listening that if you

1 State v. Yarbough, 100 N.J. 627 (1985). A-1137-23 3 find yourself in the circumstances of taking two lives, even if you take them at about the same time and you direct violence towards two people, that you should be better off than someone who takes one life. I can not in good conscience make that ruling. I do not feel it is justified in this case. To come to that conclusion would be to give [defendant] the benefit of a free crime to which on this record he is not entitled.

[(Emphasis added.)]

After considering counsels' arguments, the statements made by

defendant and his mother, and weighing the aggravating and mitigating

circumstances, the trial judge imposed a thirty-year prison term for each

murder conviction and ordered that those two sentences be served

consecutively. The remaining sixteen convictions were either merged and

dismissed or were ordered to be served concurrently to the murders.

We affirmed defendant's conviction and sentence on direct appeal and

specifically concluded that the consecutive service of those sentences was

proper under State v. Yarbough, 100 N.J. 627 (1985). State v. Romero, Nos.

A-6593-99, A-0282-00, A-0834-00, A-5704-00, A-4974-99 (App. Div. Apr.

12, 2004). We held that "other Yarbough factors, that the 'crimes involved

separate acts of violence' and that 'the crimes involved multiple victims,' do

weigh in favor of consecutive sentences." Id., slip op. at 40 (quoting

A-1137-23 4 Yarbough, 100 N.J. at 644). The Supreme Court denied certification. State v.

Manso, 181 N.J. 548 (2004).

Defendant sought post-conviction relief (PCR) alleging that his trial

counsel was ineffective, that the prosecutor acted improperly, and that new

evidence was discovered, all of which impacted on defendant's conviction.

The trial court denied that application. We affirmed that denial. State v.

Manso, No. A-2646-12 (App. Div. Aug. 26, 2015). The Supreme Court denied

certification. State v. Manso, 224 N.J. 245 (2016).

Defendant filed a second PCR petition in 2018 and argued that the

prosecutor withheld exculpatory evidence. The trial court denied that

application. We affirmed that denial. State v. Manso, A-1568-18 (App. Div.

Apr. 9, 2020). The Supreme Court denied certification. State v. Manso, 244

N.J. 366 (2020).

In 2023, defendant moved to have the consecutive sentences declared

"illegal" under Rule 3:21-10(b)(5). However, because the trial judge had

retired, the application was heard by another judge (the motion judge). The

motion judge denied defendant's application in a written opinion and

ultimately concluded that the sentencing judge had properly considered the

Yarbough factors and acknowledged that we had already considered and

A-1137-23 5 affirmed defendant's consecutive sentences. Importantly, the motion judge

also specifically concluded that the sentencing judge "did provide a statement

of overall fairness by indicating that consecutive sentences were fair because if

[defendant] were not sentenced to consecutive sentence[s] the second murder

would be essentially a 'free crime.'" This appeal followed.

On appeal, defendant raises these points for our consideration:

POINT I

[DEFENDANT] IS ENTITLED TO BE RESENTENCED BECAUSE THE TRIAL COURT ILLEGALLY SENTENCED HIM UNDER A MISAPPREHENSION OF THE APPLICABLE LAW IN VIOLATION OF HIS DUE PROCESS RIGHTS.

A. The Incorrect Application of the Law During Sentencing Result[ed] in an Illegal Sentence.

B. The Sentencing Court Sentenced [Defendant] under an Incorrect Application of the Yarbough Factors.

C. The Sentencing Court's Lack of a Clear Statement of Reasons Requires the Matter be Remanded for Resentencing.

A-1137-23 6 II.

It is axiomatic that a defendant may move to correct an illegal sentence

at any time. R. 3:21-10(b)(5)2; State v. Schubert, 212 N.J. 295, 309 (2012).

An illegal sentence is one that "exceed[s] the penalties authorized by statute

for a specific offense, and those that are not authorized by law." Id. at 308.

Those two categories of illegal sentences have been "defined narrowly." State

v. Hyland, 238 N.J. 135, 145 (2019) (citing State v. Murray, 162 N.J. 240, 246

(2000)). Arguments that the imposition of consecutive sentences violate the

Yarbough guidelines "have historically been characterized as relating to the

'excessiveness' of the sentences, rather than their legality." State v. Flores, 228

N.J. Super. 586, 596 (App. Div. 1988). The legality of a defendant 's sentence

is a question of law subject to de novo review. State v. Steingraber, 465 N.J.

Super. 322, 327-28 (App. Div. 2020).

Having reviewed defendant's arguments and the applicable legal

principles, we conclude they are without merit. We add these comments:

Defendant's sentence is not an illegal sentence that requires correction

under R. 3:21-10(b)(5). Defendant claims the trial judge improperly sentenced

2 R. 3:21-10(b)(5) permits a motion to "be filed and an order [to be] entered at any time . . . correcting a sentence not authorized by law including the Code of Criminal Justice." A-1137-23 7 defendant under an incorrect application of the Yarbough factors and that it

"was constrained to apply consecutive sentencings when there are multiple

victims without regard or consideration of the overall fairness of the sentence."

This assertion is not supported by the record. On direct appeal, we previously

considered the propriety of the consecutive nature of the sentences. We

concluded that the consecutive treatment was appropriate because it resulted

from separate acts of violence inflicted on multiple victims. As aptly noted by

the trial judge, "[t]here was a specific intention directed at both of these people

by separate people acting under orders. There was a motivation toward each

of these people. What happened was intended to happen and it required that

they each be dealt with separately. And they were."

Defendant also argues that because the trial court failed to provide a

specific reference about the overall fairness of the sentence that it was,

therefore, illegal. Aside from the fact that the caselaw at the time of the

defendant's sentence did not require such an explicit observation, the trial

court, nevertheless, engaged in a process that ensured substantive fairness.

In 2021, our Supreme Court required a trial judge, when imposing

consecutive sentences, to include an "explicit statement" that the judge

acknowledged "overall fairness" of the sentence imposed. State v. Torres, 246

A-1137-23 8 N.J. 246, 268, 271 (2021). However, the Torres rule is not retroactive and

does not entitle defendant to a resentencing hearing because it does not

represent a departure from the existing law. See State v. Feal, 194 N.J. 293,

307-08 (2008) (holding that a decision has retroactive application when the

opinion "announced" a "new rule of law.") First, Torres was issued twenty-

one years after defendant was sentenced. Second, the Court explained that its

ruling was intended to "underscore" and "promote" the "concepts of

uniformity, predictability, and proportionality" that underlie the sentencing

factors that it established in Yarbough:

[w]e reiterate the repeated instruction that a sentencing court's decision whether to impose consecutive sentences should retain focus on "the fairness of the overall sentence." [State v.] Miller, 108 N.J. [112], 122 (1987); see also State v. Abdullah, 184 N.J. 497, 515 (2005). Toward that end, the sentencing court's explanation of its evaluation of the fairness of the overall sentence is a "necessary feature in any Yarbough analysis." [State v.] Cuff, 239 N.J. [321], 352 (2019).

[Torres, 246 N.J. at 270.]

Third, Torres did not announce a new rule of law. Rather, it renewed

and reemphasized the long-established requirement that a sentencing court

provide "an explanation of the overall fairness of [a] consecutive sentence

. . . ." Ibid. Therefore, the absence of a Torres statement does not render a

A-1137-23 9 sentence that does not include it illegal, so long as it is evident from the court's

analysis that the court did consider whether the consecutive sentence was fair

and just.

Finally, and substantively, a review of the sentencing hearing itself

reveals that although the trial judge might not have strictly self-characterized

the sentence as "fair," an objective review of it confirms that it was. The trial

judge certainly understood that the court possessed the discretion to impose

consecutive or concurrent sentencings and that the judge understood that there

was no presumption of consecutive sentences. Specifically, the judge

requested that the parties make their positions known "with regard to the

appropriateness of concurrent versus consecutive sentences." Later, the judge

noted that mandatory consecutive sentences in the kidnapping statute are an

"enhanced sentencing provision" and not "normal sentencing." The judge then

reported that "I am going to take the time to respond to some comments made

. . . . It will also give some insight, I feel[,] into the decisions I reach with

regard to the range of the sentences and the issues of consecutive and

concurrent sentences." Before imposing the sentence, the trial judge stated "I

will begin with the sentences for murder. I had to decide . . . whether the

sentences should run consecutively or concurrently." The judge's description

A-1137-23 10 of concurrent sentences "versus" consecutive sentences, characterizing the

determination as an "issue," and specifically asking the parties for their

position as to how the court should exercise discretion all demonstrate her

understanding that the imposition of consecutive sentences was not presumed.

Additionally, the trial judge manifestly engaged in a qualitative analysis

of the Yarbough factors. The trial judge did refer to the principle of "no free

crimes" and the fact that there were multiple victims of the defendant.

However, these pertinent references were not exclusive, but were paired with

other analysis evidencing the trial judge's understanding of the consequences

of a choice between consecutive and concurrent sentences.

To the extent that we have not addressed them, defendant's remaining

arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

A-1137-23 11