State of New Jersey v. Robert A. Harrell

• Court: New Jersey Superior Court Appellate Division
• Decided: May 5, 2026
• Docket: A-1164-21
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1164-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT A. HARRELL, a/k/a ROBERT A. HALL, ROBERT A. HARRELLJONES, ROBERT A. JONES, and ROBERT HARRELL,

Defendant-Appellant. ___________________________

Submitted December 4, 2023 – Decided February 14, 2025. Remanded by the Supreme Court March 24, 2026. Resubmitted April 17, 2026 – Decided May 5, 2026

Before Judges DeAlmeida, Berdote Byrne and Bishop- Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 20-01-0155.

Jennifer N. Sellitti, Public Defender, attorney for appellant (Laura B. Lasota, Deputy Public Defender II, of counsel and on the brief). Jennifer Davenport, Attorney General, attorney for respondent (David M. Galemba, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

This matter returns to us by order of the Supreme Court directing us to

reconsider a portion of our opinion, State v. Robert A. Harrell, Docket No. A-

1164-21 (App. Div. Feb. 14, 2025), in light of its recent decision in State v.

Carlton, 262 N.J. 629 (2026). In our prior opinion, we vacated defendant's

extended-term sentence as a persistent offender, N.J.S.A. 2C:44-3(a), for his

conviction of the first-degree attempted murder of his father, N.J.S.A. 2C:5-1(a)

and N.J.S.A. 2C:11-3(a)(1), because his eligibility for the extended term was

determined by the sentencing court rather than a jury. We concluded this error

could not be considered harmless.1

In Erlinger v. United States, 602 U.S. 821, 835 (2024), the United States

Supreme Court held a defendant is entitled under the Fifth and Sixth

1 N.J.S.A. 2C:44-3(a) provides that a court may sentence a defendant who commits a first-, second-, or third-degree crime when he is twenty-one or older to an extended term of imprisonment as a persistent offender if the defendant "has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced." A-1164-21 2 Amendments to have a jury unanimously determine, beyond a reasonable doubt,

whether the defendant's past offenses were "committed on occasions different

from one another" under the federal Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e). The Erlinger majority, applying principles first announced in

Apprendi v. New Jersey, 530 U.S. 466 (2000), reiterated "there is no doubt what

the Constitution requires in these circumstances: Virtually 'any fact' that

'increase[s] the prescribed range of penalties to which a criminal defendant is

exposed' must be resolved by a unanimous jury beyond a reasonable doubt (or

freely admitted in a guilty plea)." Erlinger, 602 U.S. at 834 (alteration in

original) (quoting Apprendi, 530 U.S. at 490).

It is not disputed that Erlinger abrogated New Jersey's persistent offender

statute to the extent N.J.S.A. 2C:44-3(a), as presently drafted, provides certain

predicate facts are to be found by a court rather than a jury. The critical issue

presented to our Supreme Court in Carlton was whether a violation of the

Erlinger rule could be harmless constitutional error. The Court concluded that

"errors in failing to submit sentencing factors or elements to a jury, as in

Apprendi and its progeny, are presumptively subject to harmless error analysis,

not automatic reversal." Carlton, 262 N.J. at 643. The Court further held that

before a constitutional error can be considered harmless, the reviewing court

A-1164-21 3 must be convinced beyond a reasonable doubt the error did not affect the

sentencing outcome. Id. at 642. Stated another way, the record must provide

meaningful appellate review and demonstrate that only one outcome would have

been possible had the defendant's eligibility for an extended-term sentence been

presented to a jury. Id. at 645.

The Court thus held the harmless constitutional error doctrine applies to

Erlinger violations provided "the relevant facts are undisputed, the sentencing

court's reasoning fully articulated, and the record demonstrates, beyond any

reasonable doubt, the sole conclusion a jury could have reached had Erlinger

been in place at the time of sentencing." Id. at 644. Applying that test, the Court

found the constitutional error in Carlton was harmless beyond a reasonable

doubt. Id. at 645.

Here, at sentencing, the State produced evidence defendant was convicted

of six crimes committed on six separate dates, each when he was eighteen or

older:

(1) On January 18, 2008, defendant was sentenced to a five-year term

of probation for convictions of third-degree possession of cocaine, N.J.S.A.

2C:35-10(a)(1), in Atlantic City on November 27, 2005, third-degree possession

of cocaine, N.J.S.A. 2C:35-10(a)(1), in Atlantic City on October 22, 2006, and

A-1164-21 4 third-degree distribution of cocaine, N.J.S.A. 2C:35-5(a)(1), in Hamilton

Township on August 14, 2007. On January 11, 2013, defendant was resentenced

on all three convictions to a three-year term of incarceration based on his

violation of the conditions of probation;

(2) On January 25, 2012, defendant was sentenced by a Pennsylvania

court to a term of incarceration of eleven-and-a-half months to twenty-three

months for possession of cocaine with intent to distribute in York, Pennsylvania

between January 25, 2011, and March 9, 2011, and a concurrent term of

incarceration of eleven-and-a-half months to twenty-three months for possession

of heroin with intent to distribute in York on an unspecified date in May 2011;

and

(3) On October 15, 2013, defendant was sentenced by a Pennsylvania

court to a term of incarceration of two-to-four years for possession with intent

to distribute heroin in York on November 29, 2012. The court ordered this

sentence to be served concurrently with the term of incarceration imposed for

the parole violation described in paragraph (1). In addition, on that day,

defendant returned to court for violations of parole on the two cases described

in paragraph (2). The court dismissed one of those cases and resentenced

defendant to a term of imprisonment of two-to-four years to be served

A-1164-21 5 concurrently with the other sentence imposed on October 15, 2023, and to the

term of incarceration imposed for the parole violation described in paragraph

(1).

Defendant did not dispute the validity or accuracy of the predicate facts

presented by the State. In fact, at the sentencing hearing, defendant's counsel

stated, "So, look, technically, is he a persistent offender? Does he meet the

criteria? Yes, I think, based upon the statute, he does." Defendant's counsel

urged the court not to impose an extended term because of defendant's history

of untreated substance abuse.

Based on the uncontested documentary evidence, the sentencing court

found:

[t]he State has established to the satisfaction of this [c]ourt, that (1) [d]efendant has been convicted of the first-degree crime of attempted murder which was committed when he was over 21 years of age; (2) [d]efendant has been convicted and sentenced on three separate occasions to a total of six separate crimes, each occurring on a separate date and occurring when he was at least 18 years of age; and (3) [t]he predicate crime of attempted murder occurred on December 31st, 2018, which was in ten years of both his last conviction on October 13, 2013, and his last release from incarceration under both the October 15, 2013, Pennsylvania sentencing date and the New Jersey violation of probation sentencing date of January 11, 2013.

A-1164-21 6 Based on these findings, the [c]ourt is satisfied that the State has shown the defendant is a persistent offender under the relevant statute and is thus eligible for sentencing to a discretionary extended term of imprisonment.

In a supplemental brief filed after the Supreme Court's remand order,

defendant acknowledged his counsel's concession he was eligible for imposition

of an extended-term sentence under N.J.S.A. 2C:44-3(a). He argued, however,

the sentencing court's eligibility finding was not harmless error because the

court did not identify the dates of his prior crimes, and did not make findings of

fact regarding whether his prior crimes were committed at different times. In

addition, defendant argued the court erred when it relied on the date of his latest

conviction and sentencing, instead of the date of his latest prior crime or latest

date of release from confinement, to determine the ten-year period in N.J.S.A.

2C:44-3(a) was satisfied.

Applying the Carlton harmless-constitutional-error rule, we conclude the

State established beyond any reasonable doubt defendant was eligible for an

extended term, and the sole conclusion a jury could have reached was that

defendant was eligible to be sentenced as a persistent offender as defined in

N.J.S.A. 2C:44-3(a). We agree the sentencing court erred when it relied on

defendant's latest conviction and sentencing date when it determined he was

A-1164-21 7 eligible for an extended-term sentence. The operative date in the statute is the

latter of defendant's latest prior crime or latest release from confinement.

However, the evidence in the record indisputably establishes the court's

eligibility finding was correct and was the only possible outcome a jury

considering that evidence could have reached.

There is no dispute defendant was over twenty-one at the time of the

attempted murder. In addition, the record contains uncontroverted evidence

defendant was convicted of six crimes in two states on varying days in five

different years while he was eighteen or older. After examining this evidence,

the sole conclusion a jury could have reached was that defendant had "been

previously convicted on at least two separate occasions of two crimes committed

at different times . . . ."

In addition, it is uncontroverted defendant's latest crime prior to the

attempted murder occurred on November 19, 2012. That date was within ten

years of the December 31, 2018 attempted murder for which he was being

sentenced. Although the record does not establish the latest date on which

defendant was released from confinement prior to the attempted murder,

identifying that date was not necessary to determine defendant's eligibility for

an extended-term sentence. If defendant was last released from confinement

A-1164-21 8 prior to November 19, 2012 (which is unlikely given he received a custodial

sentence on October 15, 2013), the November 19, 2012 date of his latest prior

crime, which was within the ten years of the attempted murder, would control.

If defendant was last released from confinement after November 19, 2012, the

date of release would necessarily be within ten years of December 31, 2018, and

would satisfy the ten-year statutory period. In either case, the sole conclusion a

jury could have reached was that defendant was eligible for an extended-term

sentence under N.J.S.A. 2C:44-3(a). Accordingly, as in Carlton, the Erlinger

violation in this case was harmless constitutional error.

Defendant raised two sentencing arguments we did not reach after we

vacated his sentence for attempted murder. He argued the sentencing court: (1)

double counted his prior offenses by both finding him eligible for an extended

term and applying aggravating factors three and six; and (2) erred in applying

aggravating factors one and two.

The court found aggravating factors:

(1) one, N.J.S.A. 2C:44-1(a)(1) ("[t]he nature and circumstances of the

offense, and the role of the actor in committing the offense, including whether

or not it was committed in an especially heinous, cruel, or depraved manner

A-1164-21 9 . . . ."). With respect to the basis for this factor, the court stated it "need only

note the heinousness of attempted patricide.";

(2) two, N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and seriousness of harm

inflicted on the victim, including whether or not the defendant knew or

reasonably should have known that the victim of the offense was particularly

vulnerable or incapable of resistance due to advanced age, ill-health, or extreme

youth, or was for any other reason substantially incapable of exercising normal

physical or mental power of resistance . . . ."). The court found defendant's

father "suffered a grave and catastrophic injury to his face and his jaw.";

(3) three, N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will

commit another offense . . . ."). The court found defendant's extensive criminal

history "convinces the [c]ourt that he will commit another offense and left at his

liberty . . . will offend again and he will offend violently.";

(4) six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior

criminal record and the seriousness of the offenses of which the defendant has

been convicted . . . ."); and

(5) nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the defendant

and others from violating the law . . . ."). The court found this factor "especially

weighty, given that this defendant has been treated with lenity in the past." The

A-1164-21 10 court continued, "[t]he defendant's previous convictions for illegal drugs crimes

. . . resulted in probation and then a relatively brief period of incarceration

following those three probationary sentences." The court noted, that "[g]iven

the opportunity then to accept rehabilitation and conform his behavior to

society's norms, this defendant did just the opposite. [He] needs to be

specifically deterred and only a very lengthy commitment to state prison will

meet this end."

The court found no mitigating factors and concluded the aggravating

factors "substantially, clearly, and convincingly" outweighed the absence of

mitigating factors. After merging the convictions of four other counts into the

attempted murder conviction, the court sentenced defendant to an extended

forty-year term of imprisonment, with a twenty-year period of parole

ineligibility for attempted murder.2

The State subsequently moved to correct an illegal sentence based on the

court's failure to impose a period of parole ineligibility required by the No Early

2 In our February 14, 2025 opinion, we vacated ten of defendant's convictions, two with the State's consent, based on errors in the instructions given to the jury, and remanded for a new trial on those counts of the indictment. Five of those counts related to the attempted murder of defendant's father; five other counts related to a robbery and the stabbing of a second victim. The jury acquitted defendant on one additional count. A-1164-21 11 Release Act (NERA), N.J.S.A. 2C:43-7.2, on the attempted murder sentence.

The court granted the motion, and resentenced defendant on the attempted

murder conviction to a thirty-year term of imprisonment, with an eighty-five-

percent period of parole ineligibility.

The scope of our review is narrow. Appellate courts review sentencing

determinations under an abuse of discretion standard. State v. Bollvito, 217 N.J.

221, 228 (2014). We must affirm a sentence under review 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."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

Once a sentencing court has balanced the aggravating and mitigating

factors set forth in N.J.S.A. 2C:44-1(a) and (b), it "may impose a term within

the permissible range for the offense." State v. Morente-Dubon, 474 N.J. Super.

197, 208 (App. Div. 2022) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010));

see also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts

may not substitute their judgment for that of the sentencing court, provided that

A-1164-21 12 the "aggravating and mitigating factors are identified, supported by competent,

credible evidence in the record, and properly balanced").

We are not persuaded by defendant's contention the sentencing court

impermissibly double counted aggravating factors three and six. The persistent

offender statute requires only two prior convictions to render defendant eligible

for an extended-term sentence, whereas defendant had six prior convictions. In

these circumstances, the sentencing court was free to consider the other four

convictions for the purpose of finding aggravating factors without running afoul

of the double-counting prohibition. See State v. Abdullah, 184 N.J. 497, 506

n.2 (2005) ("In a discretionary sentencing system in which the court decides the

weight to give to a prior criminal conviction and how high on the scale to

increase the sentence, the court naturally would consider the risk a defendant

will re-offend and the need to deter."); see also State v. Dunbar, 108 N.J. 80, 92

(1987) (noting that a defendant's "overall response to prior attempts at

rehabilitation" is a "relevant factor[] in adjusting the base extended term").

Defendant also argues the court erroneously applied aggravating factor

one because it relied solely on the fact that defendant attempted to murder his

father, without identifying any facts that made the attempted patricide especially

heinous or cruel. When applying aggravating factor one, "the sentencing court

A-1164-21 13 reviews the severity of the defendant's crime, the single most important factor

in the sentencing process, assessing the degree to which defendant's conduct has

threatened the safety of its direct victims and the public." Fuentes, 217 N.J. at

74 (quoting State v. Lawless, 214 N.J. 594, 609 (2013)). "In appropriate cases,

a sentencing court may justify the application of aggravating factor one, without

double-counting, by reference to the extraordinary brutality involved in an

offense." Id. at 75; see e.g., State v. Mara, 253 N.J. Super. 204, 214 (App. Div.

1992) (affirming the sentencing court's application of aggravating factor one

when, in an aggravated assault, "the serious injuries were far in excess of that

required to satisfy" the crime's statutory elements). Here, defendant shot his

father multiple times in the face and chest without warning, then walked away,

leaving his father gravely injured and choking on his own blood. The heinous

nature of defendant's acts is self-evident.

The court's application of aggravating factor two, the gravity of the harm

inflicted on the victim, was based on the catastrophic injuries defendant inflicted

on his father. The record establishes the victim suffered a fractured skull and

shattered jaw, lost half of his tongue, and most of his teeth. To save his life, the

victim was forced to crawl down a motel hallway to seek help while

A-1164-21 14 hemorrhaging from the wounds inflicted by his son. Aggravating factor two is

amply supported by the record.

The sentencing court did not abuse its discretion. The court properly

sentenced defendant based on competent evidence in the record and the sentence

does not shock the judicial conscience. See Fuentes, 217 N.J. at 70 (quoting

Roth, 95 N.J. at 364-65).

The sentence on defendant's conviction of first-degree attempted murder

is affirmed, and the matter is remanded for proceedings consistent with our

February 14, 2025 opinion. We do not retain jurisdiction.

A-1164-21 15