NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0369-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID W. CAMPBELL, a/k/a DAVID WILLIAM CAMPBELL,
Defendant-Appellant. ________________________________
Submitted May 30, 2017 – Decided June 28, 2017
Before Judges Sabatino and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 11-06-00185.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Richard T. Burke, Warren County Prosecutor, attorney for respondent (Kelly Anne Shelton, Assistant Prosecutor, on the brief).
PER CURIAM
Following a judge's denial of defendant David W. Campbell's
motion to suppress evidence of a controlled dangerous substance
(CDS), lysergic acid diethylamide (LSD), defendant accepted a plea offer and pleaded guilty before a different judge to one count of
second-degree possession with intent to distribute LSD. At
sentencing, the second judge rejected the plea bargain and
sentenced defendant on the second-degree offense to a flat five-
year custodial term. Defendant has appealed. He argues two
points:
POINT ONE
THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED WHEN NEW JERSEY STATE TROOPERS REENTERED DEFENDANT'S AUTOMOBILE TO CONDUCT A SECOND SEARCH THAT WAS NOT A CONTINUATION OF THE ORIGINAL SEARCH, CONTRARY TO THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT TWO
DEFENDANT'S SENTENCE WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING HIS SENTENCE TO BE VACATED AND THE CASE RETURNED TO THE TRIAL COURT FOR A NEW SENTENCE HEARING.
Because New Jersey State Troopers re-entered defendant's
automobile while reasonably continuing their execution of a valid
search warrant, we reject defendant's first argument and affirm
his conviction. We are constrained, however, to vacate defendant's
sentence and remand for re-sentencing. The sentencing judge did
not appear to consider all relevant factors when it rejected a
material term of the plea agreement, and did not afford defendant
the opportunity to withdraw his plea.
2 A-0369-15T3 In June 2011, a Warren County grand jury returned an
indictment charging defendant with four crimes: first-degree
possession with intent to distribute a CDS, LSD, N.J.S.A. 2C:35-
5(a) and N.J.S.A. 2C:35-5(b)(6) (count one); third-degree
possession of a CDS, LSD, N.J.S.A. 2C:35-10(a)(1) (count two);
third-degree possession with intent to distribute a CDS, hashish,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(11) (count three);
and fourth-degree possession of a CDS, hashish, N.J.S.A. 2C:35-
10(a)(3) (count four). Following his indictment, defendant filed
motions to dismiss the indictment and suppress LSD police seized
from the automobile he had been driving. The judge who conducted
the pre-trial proceedings ultimately denied the motions.
Thereafter, defendant struck a plea bargain with the State
in which he agreed to plead guilty to count one of the indictment,
possession with intent to distribute a CDS, LSD, as amended to a
second-degree crime. In exchange, the State agreed to dismiss the
indictment's remaining counts and consented to the court
sentencing defendant as a third-degree offender. During the plea
proceeding, the judge assured himself defendant understood the
sentence would be in the third-degree range of three to five years,
stating that due to the presumption of imprisonment for second-
degree crimes, defendant was "almost certain to go to prison for
a term of something between three and five years."
3 A-0369-15T3 At sentencing, the judge rejected the plea bargain and
sentenced defendant to a flat five-year custodial term for the
second-degree crime. Defendant received 207 days of jail credit,
and the judge recommended defendant be considered for entry into
the Intensive Supervision Program "at his earliest eligibility."
The judge also imposed appropriate fines and assessments.
Following sentencing, defendant filed this appeal.
Defendant first challenges the denial of his motion to
suppress LSD police seized after impounding the car defendant had
been driving before his arrest. The record of the suppression
hearing reveals the following facts.
The relevant events occurred on June 28, 2010. That morning,
at approximately 4:00 a.m., State Troopers Antonio Sousa and Joseph
Palach drove their marked patrol car to the Allamuchy truck stop
on Route 80 to conduct a routine property check. There, they saw
a parked Honda Civic with its windows down. Trooper Sousa exited
the police car and approached the Honda. When he came within
three feet of the car, he smelled raw marijuana. He walked closer
to the Honda's passenger side, shone his flashlight into the car,
and saw two males asleep. He also saw a green plastic jar
containing green vegetation on the passenger side armrest. Based
on his training and experience, Trooper Sousa suspected the
vegetation was marijuana.
4 A-0369-15T3 Trooper Sousa waved to Trooper Palach, who walked to the
Honda's driver's side. Trooper Palach also detected the odor of
raw marijuana. Trooper Sousa again shone his flashlight into the
car, "banged on the car, [and] stated New Jersey State Police[.]"
The men woke up. Trooper Palach told them he smelled marijuana
and Trooper Sousa observed marijuana in the car.
Trooper Palach asked the driver, defendant, for his license
and registration, which defendant produced. Trooper Sousa asked
the passenger for his license. As the passenger reached for his
license, the trooper "observed a clear glass jar on the passenger
side floorboard with green vegetation in it." Trooper Palach
seized the jar, asked defendant to exit the vehicle, handcuffed
him, and placed him under arrest. While searching defendant
incident to the arrest, the trooper seized hashish from defendant's
person.
Trooper Sousa simultaneously asked the passenger to turn over
the green plastic jar, instructed him to exit the vehicle, placed
him under arrest, and handcuffed him. The trooper searched the
passenger but found nothing.
Defendant refused to consent to a search of the car. After
arranging for a tow truck to tow the Honda to the police station,
the troopers drove defendant and his passenger there.
5 A-0369-15T3 After arriving at the station, Trooper Sousa prepared an
affidavit and application for a search warrant, which a judge
issued at approximately 12:10 p.m. the same day. The warrant
required the troopers to execute a search "between the hours of
6:00 a.m. to 2:00 a.m. within ten (10) days from the issuance
hereof and thereafter to forthwith make prompt return to [the
judge] with a written inventory of the property seized within 10
days of the issuance of [the] warrant." The warrant authorized
the officers to search the Honda for "illegal controlled dangerous
substances, and/or evidence of the possession thereof, including
but not limited to marijuana and hashish[.]"
After receiving the warrant, Trooper Palach, Trooper Sousa,
and two other troopers searched the Honda. Police initially
searched the Honda for about an hour, beginning shortly after 1:00
p.m. and finishing shortly before 2:00 p.m. The troopers seized
money, CDS paraphernalia, two clear plastic bags containing
marijuana, and hashish. They also seized multiple "papers that
resembled small little perforated sheets." Each sheet contained
numerous multicolored "tabs." The sheets were "relatively square"
and contained thirty rows and thirty columns of tabs, for a total
of 900 tabs per sheet.
Although Trooper Sousa had seen a "lens bottle" when he
initially searched the Honda, and though other troopers thought
6 A-0369-15T3 it "was out of the ordinary" for two males to have liquid nail
polish remover, which the troopers had seen in the car, the
troopers did not immediately understand the significance of these
items. Trooper Susan Stafford, an experienced narcotics
investigator who arrived later, understood their significance.1
Within "a couple of hours" of the troopers sorting and laying
out the seized evidence in a room, Trooper Stafford arrived. She
discussed with the other troopers how LSD is dabbed on the "tabs"
on the perforated sheets as a means of distributing it for
ingestion. Trooper Stafford recommended a further search of the
Honda. During the ensuing search, the troopers located and seized
a small glass nail polish container and a "lens relief plastic
bottle," the latter of which contained LSD.
Trooper Sousa executed a "Return of Search Warrant" two days
after the search, but the attached inventory sheet did not include
the lens bottle. Trooper Stafford submitted an amended inventory
sheet on August 18, 2010, identifying the lens container.
The judge who heard the suppression motion ultimately denied
it. Defendant contests neither the warrantless searches at the
truck stop nor the initial search of the Honda pursuant to the
1 Trooper Stafford's last name changed to Mistretta between the day of defendant's arrest and the time of the suppression hearing.
7 A-0369-15T3 warrant. He contests only the search that occurred when troopers
re-entered the Honda after Trooper Stafford arrived at the station.
In a written decision, the motion judge found the re-entry
and search lawful. The judge noted the troopers were searching
for CDS, which the warrant authorized. The warrant did not
restrict the search to certain types of CDS. Thus, the second
time troopers entered the Honda, their purpose was the same as
that for the initial entry, namely, to search for CDS.
The judge next noted the reason the troopers re-entered the
Honda was because a trooper who did not participate in the initial
search recognized the perforated paper as a medium for distributing
LSD. The judge found it reasonable "for law enforcement officers
to return to look for the missing components to this compound
product. If they found a box of ammunition they would be expected
to look for the gun; if they found a stolen jewelry box, they
would be expected to look for jewelry." The judge concluded,
"[t]he fact that the [t]roopers conducting the first part of the
search did not recognize what they had in the perforated paper is
no basis to find their return unreasonable." The judge held the
re-entry of the car was "a reasonable continuation of the search
. . . authorized by the search warrant." For those reasons, she
denied defendant's suppression motion.
8 A-0369-15T3 On appeal, defendant first contends the trial court erred
when it denied his motion to suppress the evidence seized by the
troopers when they re-entered the Honda and found LSD. Defendant
argues the warrant did not authorize an additional search after
the troopers completed their original search. The argument is
unpersuasive. We affirm, substantially for the sound reasons
expressed by the motion judge in her written opinion.
Our review of a trial court's factual findings is deferential.
State v. Scriven, 226 N.J. 20, 32 (2016). That is particularly
so as "to those findings of the trial judge which are substantially
influenced by his [or her] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing
court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).
If the trial court's findings could reasonably have been reached
on sufficient, credible evidence present in the record, our task
is complete and we should not disturb the result. Id. at 162.
Our review of the trial court's legal conclusions is plenary.
State v. Rockford, 213 N.J. 424, 440 (2013) (citations omitted).
Under the "reasonable continuation doctrine," law enforcement
officers executing a search warrant may, in limited circumstances,
re-enter the location to continue their initial search. State v.
Finesmith, 406 N.J. Super. 510, 519 (App. Div. 2009). Their re-
entry must, however, be a continuation of the initial search.
9 A-0369-15T3 In order for a re-entry into premises to be considered a reasonable continuation of the search authorized by the warrant, two conditions must be satisfied: first, "the subsequent entry must . . . be a continuation of the original search, rather than a new and separate search," and second, "the decision to conduct a second entry to continue the search must be reasonable under the totality of the circumstances."
[Id. at 19 (citing United States v. Keszthelyi, 308 F.3d 557, 559 (6th Cir. 2002)).]
Here, the motion judge properly concluded the troopers
reasonably continued their search when they returned to the Honda
after Trooper Stafford, who was not present when troopers initially
seized items from the Honda, reviewed the seized evidence and
recognized a connection between the items seized and distribution
of LSD. The search for LSD was well within the scope of the
warrant, which authorized the troopers to search the Honda for
CDS, including but not limited to marijuana and hashish. Once the
troopers recognized the connection between the perforated sheets
and the distribution of LSD, they re-entered the Honda almost
immediately. Only two hours or less elapsed between the officers
sorting the evidence they initially seized and returning to
complete the search. See Finesmith, supra, 406 N.J. Super. at
521. These circumstances amply support the motion judge's
determination that the re-entry into the Honda was both a
10 A-0369-15T3 continuation of the initial search and reasonable under the
circumstances.
In his second argument, defendant contends his sentence is
excessive and the sentencing judge abused his discretion by
imposing a sentence within the second-degree range, contrary to
the plea agreement. We agree a remand is necessary.
The terms of the plea agreement included defendant being
sentenced within the third-degree range. During the plea colloquy,
the judge made certain defendant understood what pleading guilty
to a second-degree crime but being sentenced as if for a third-
degree crime meant. The judge explained the sentencing range was
"[b]etween three and five years;" and, "notwithstanding the fact
that [defense counsel] has negotiated a downward departure, so to
speak, the presumption of imprisonment still applies. So it is
almost certain you will go to state prison." As the plea
proceeding concluded, the judge warned defendant:
I tell you that between now and the time of sentencing, if you get into any additional trouble, particularly if the trouble consists of conduct similar to that which brings you here today, things will not go well for you at the time of sentencing. In point of fact, not only will you be more likely to face five years as opposed to three, you may face objectionable sentence bar of the portion of this plea agreement and be back in the second- degree range exposing you now to up to ten years in state prison. Clear?
11 A-0369-15T3 [(Emphasis added).]
Defendant said it was clear.
It was also clear from the court's discussion with defendant
that defendant would be sentenced to a prison term between three
and five years. During the sentencing proceeding, without any
advance warning to defendant, the judge determined not to follow
the plea bargain. Rather, he imposed a sentence for a second-
degree offense.
The judge found two aggravating factors: the risk of re-
offense, N.J.S.A. 2C:44-1(a)(3), and the need for deterrence,
N.J.S.A. 2C:44-1(a)(9). The judge also found two mitigating
factors: defendant did not contemplate his conduct would cause
others harm, N.J.S.A. 2C:44-1(b)(2), and defendant had no prior
criminal history, N.J.S.A. 2C:44-1(b)(7). The judge found the
mitigating factors did not substantially outweigh the aggravating
factors. For that reason, and because the judge was not clearly
convinced the interests of justice would be served by sentencing
defendant as if for a third-degree crime, the judge sentenced
defendant for his second-degree offense.
The State concedes the sentencing judge did not follow the
plea agreement. Nonetheless, the State argues that defendant's
"net exposure is the same." The State also argues the sentencing
judge was not bound by the plea agreement, the judge had discretion
12 A-0369-15T3 to accept or reject the agreement, and the judge did not abuse his
discretion by rejecting it.
The State's argument correctly notes a judge's authority to
set aside a plea agreement, but overlooks both a court rule and
relevant precedent. Rule 3:9-3(e) provides that if the sentencing
judge determines "the interests of justice would not be served by
effectuating the [plea] agreement . . . or by imposing sentence
in accordance with the court's previous indications of sentence,
the court may vacate the plea or the defendant shall be permitted
to withdraw the plea." [(Emphasis added).]
Here, the sentencing judge not only rejected the plea
agreement term requiring defendant to be sentenced as if for a
third-degree crime, but he imposed a sentence contrary to his
previous indications of the likely sentence at the plea proceeding.
There, the judge had made certain defendant knew he would be
sentenced to a term between three and five years, and implied that
if defendant remained offense free before sentencing, he would
likely be sentenced closer to a three-year term than a five-year
term. When the judge later decided not to accept the plea
agreement, he should have afforded defendant a fair opportunity
to withdraw his plea. We are mindful that defendant's trial
counsel made no requests to withdraw the plea, but that does not
preclude relief on appeal. R. 2:10-2.
13 A-0369-15T3 Defendant next contends that in view of the plea bargain, the
sentencing judge did not have to find that mitigating factors
substantially outweighed aggravating factors in order to sentence
defendant as if for a third-degree crime. The argument is not
entirely correct. Nonetheless, the sentencing judge appeared to
have overlooked authority requiring him to take the plea bargain
into consideration.
To be sure, a court must be "clearly convinced that the
mitigating factors substantially outweigh the aggravating factors
and . . . the interest of justice" will be served before exercising
its discretion to sentence a first- or second-degree offender "to
a term appropriate to a crime of one degree lower[.]" N.J.S.A.
2C:44-1(f)(2); see also State v. Megargel, 143 N.J. 484, 496
(1996). If a judge is not so convinced, the judge need not
sentence a defendant to a lower term merely because the parties'
plea bargain requires a contrary result. State v. Moore, 377 N.J.
Super. 445, 451 (App. Div.), certif. denied, 185 N.J. 267 (2005).
But the plea bargain is not irrelevant. In State v. Balfour, 135
N.J. 30, 38-39 (1994), our Supreme Court explained:
The court made the decision to "downgrade" defendant's sentence to the lower range assigned to second-degree sentences in the context of a plea agreement. The plea agreement can appropriately be considered and weighed in the decision to downgrade. Traditionally a guilty plea is a material
14 A-0369-15T3 factor bearing on the ultimate sentence. [State v. Thomas, 61 N.J. 314, 321 (1972); State v. Taylor, 49 N.J. 440, 455 (1967).] Thus, a guilty plea can have a lenient influence on the trial court's sentencing disposition, partly because it reflects a defendant's acceptance of responsibility for his or her criminal conduct and partly because it assists in the efficient disposition of cases. [See State v. Barboza, 115 N.J. 415, 420 (1989).]
In the present case, the guilty plea was part of an agreement that the State would recommend a downgrade of defendant's sentence to the range imposed on second-degree offenses. Thus, the agreement itself in some measure defines the mitigating effect of the plea on the court's discretionary decision whether to downgrade the sentence.
The sentencing judge in the case before us did not discuss
these considerations in rejecting the plea term requiring
defendant be sentenced as if for a third-degree offense. The
considerations are relevant, but were omitted here presumably due
to inadvertence. Defendant's trial counsel failed to call the
trial court's attention to these omissions at sentencing.
Nonetheless, we have elected to deal with the legal consequences
of those omissions now, on direct appeal, rather than to leave
them to a future petition for post-conviction relief. Accordingly,
we vacate defendant's sentence and remand this matter to the trial
court for further proceedings consistent with this opinion. If,
after due consideration of all relevant factors, the court rejects
15 A-0369-15T3 the plea term requiring defendant be sentenced as if for a third-
degree offense, then the court should afford defendant the
opportunity to withdraw his plea.
Affirmed in part, vacated in part, and remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
16 A-0369-15T3