RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3276-15T4
STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.C.,
Defendant-Appellant.
______________________________
Argued September 7, 2017 – Decided October 5, 2017 Before Judges Rothstadt and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Accusation No. 15-11-1309.
Alyssa A. Aiello, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney;
Ms. Aiello, of counsel and on the brief).
Carol M. Henderson, Assistant Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Ms. Henderson, of counsel and on the brief).
PER CURIAM
Defendant appeals the court's imposition of the special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4(a), upon the State's motion following his conviction for second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a). Defendant contends imposition of parole supervision for life was based on improper judicial fact-finding in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and was otherwise not supported by the record. We disagree and affirm.
I.
Defendant pleaded guilty to an accusation charging him with second-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4(b)(5)(a). Under his negotiated plea agreement, the State agreed to recommend that the court sentence defendant as a third-degree offender and order defendant's compliance with Megan's Law, N.J.S.A. 2C:7-1 to -23. The State also represented that it would file a motion under N.J.S.A. 2C:43-6.4(a) for the imposition of the special sentence of parole supervision for life.
During the plea proceeding, defendant testified he knowingly possessed and sent pictures of a child engaged in a sex act from his home in Virginia to an individual he later learned was a detective in Westhampton Township. The court accepted defendant's plea and scheduled the matter for sentencing.
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The State filed a motion for imposition of parole supervision for life under N.J.S.A. 2C:43-6.4(a). In pertinent part, the statute provides that "a court imposing sentence on a person who has been convicted of endangering the welfare of a child pursuant to [N.J.S.A. 2C:34-4(b)(5)] . . . shall include, upon motion of the prosecutor, a special sentence of parole supervision for life in addition to any other sentence authorized . . . , unless the court finds on the record that the special sentence is not needed to protect the community or deter the defendant from future criminal activity." N.J.S.A. 2C:43-6.4(a).
The judge sentenced defendant to a three-year custodial term and compliance with Megan's Law. The judge granted the State's motion and imposed the special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4, setting forth his reasons in a written decision. The judge found defendant made a website posting seeking "taboo fantasies." Defendant stated he "want[ed] to hear all about . . . fantasies and desires[,] your stories[,] your taboo[,]" sought to "exchange stories[,] ideas[,] taboo things you've done [and] I've done[,]" and "want[ed] to know all of your taboo stories[.]"
The judge determined the record further showed that in response to the posting, a Burlington County Prosecutor's Office detective posed as an adult male and said he fantasized about his
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five-year-old daughter in a sexual manner. Defendant responded, stating he had been "messing around" with his three daughters since they were six-years-old and had been having sexual intercourse with his oldest daughter since she was eleven.
Defendant sent the detective a photo of a Caucasian female who was approximately fourteen-years-old. Defendant also sent a batch of photographs including a photograph of a ten to twelve- year-old female performing oral sex on an adult male. Defendant stated that the photographs were of one of his daughters. Over the course of three days, defendant also sent photographs depicting child pornography. Further investigation revealed other website postings and emails in which defendant detailed sexual acts he said he performed with one of his daughters.
The judge explained that upon defendant's arrest, he admitted engaging in incest-related communications with others and acknowledged he told several people he was having sex with his fourteen-year-old daughter. He also admitted sending photographs of his fourteen-year-old daughter to individuals while communicating on the computer. Defendant denied having sexual relations with any of his daughters.
Based on his findings, the judge reasoned that the sexual nature and detail of defendant's communications with individuals unknown to him, his "stated desire to engage in sexual acts with
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his children, his willingness to exploit his children for his own sexual gratification, along with his possession and distribution of children pornography" established that defendant required supervision to protect the community and deter defendant from criminal activity. The court therefore granted the State's motion for imposition of parole supervision for life under N.J.S.A. 2C:43- 6.4(a).
Defendant appealed his sentence, challenging only the court's imposition of parole supervision for life. He makes the following arguments:
POINT I
THE PROVISION OF N.J.S.A. 2C:43-6.4 THAT REQUIRES THE IMPOSITION OF PAROLE SUPERVISION FOR LIFE (PSL) BASED ON JUDICIAL FACT-FINDING VIOLATES THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND THEREFORE, THE SENTENCE OF PSL IMPOSED ON [DEFENDANT] PURSUANT TO THAT PROVISION MUST BE VACATED. (Not Raised Below)[.]
POINT II
BASED ON THE RECORD, A SPECIAL SENTENCE OF PSL WAS NOT NEEDED TO PROTECT THE COMMUNITY OR DETER [DEFENDANT] FROM FUTURE CRIMINAL ACTIVITY. THEREFORE, THE TRIAL COURT'S ORDER IMPOSING PSL MUST BE VACATED. []
II.
Defendant first claims N.J.S.A. 2C:43-6.4(a) is unconstitutional because it permits a court to increase the penal
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consequences of a conviction, by imposing parole supervision for life,1 based on judicial fact-finding in violation of his rights under the Sixth Amendment to the United States Constitution as interpreted by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). More particularly, defendant argues the court's imposition of parole supervision for life under N.J.S.A. 2C:43- 6.4(a) was based on its finding that he needs supervision to protect the community and deter him from future criminal activity. He contends the court's fact-finding impermissibly increased the penal consequences of his conviction and therefore violated his Sixth Amendment rights.2 We disagree.
Apprendi requires "[a]ny fact (other than a prior conviction), which is necessary to support a sentence exceeding
1 The parties do not dispute that the imposition of parole supervision for life is a penal consequence of defendant's conviction. See State v. Perez, 220 N.J. 423, 442 (2015) (noting the "penal nature" of parole supervision for life). 2 Defendant raises his constitutional challenge to N.J.S.A. 2C:43- 6.4(a) for the first time on appeal. Generally, we will not consider an error that was not presented at trial unless it concerns the trial court's jurisdiction or matters of substantial public interest. State v. Robinson, 200 N.J. 1, 20 (2009). This limitation on appellate review "is not limitless." Id. at 19. Because defendant raises a constitutional issue, we exercise our discretion to address the merits of his argument.
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the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756, 160 L. Ed. 2d 621, 650 (2005). "In deciding the question of what facts must be subject to a jury finding, 'the relevant inquiry is one not of form, but of effect--does the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?'" State v. Natale, 184 N.J. 458, 473 (2005) (quoting Apprendi, supra, 530 U.S. at 494, 120 S. Ct. at 2365, 147 L. Ed. 2d at 457).
As explained by our Supreme Court, Blakely defined "'the 'statutory maximum' for Apprendi purposes [as] the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Id. at 476 (emphasis in original) (quoting Blakely, supra, 542 U.S. at 302, 124 S. Ct. at 2537, 159 L. Ed. 2d 403). Under Blakely, "the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings." Blakely, supra, 542 U.S. at 303-304, 124 S. Ct. at 2537, 159 L. Ed. 2d 403.
In Natale, the Court applied the principles in Apprendi and Blakely and determined that "[a] judge is authorized to impose a sentence within the range allowed by . . . the defendant's
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admissions at a guilty plea after waiving his right to jury trial." Natale, supra, 184 N.J. at 481. The Court also held that "the Sixth Amendment prohibits a judge from imposing a sentence greater than that allowed by the jury verdict or by the defendant's admissions at a plea hearing. Those are the constitutional boundaries for the exercise of a judge's discretion at sentencing." Id. at 482.
In State v. Pierce, 188 N.J. 155 (2006), the Court addressed a challenge to the constitutionality of N.J.S.A. 2C:43-3(a), which permits the imposition of a discretionary extended term sentence. The Court determined that the standard for the imposition of an extended term under the standard that had been established in State v. Dunbar, 108 N.J. 80 (1987), was no longer constitutionally viable under the principles in Apprendi. Pierce, supra, 188 N.J. at 168-69. Under Dunbar, the imposition of a sentence within the extended term range was dependent upon a court finding there was a need to protect the public. Dunbar, supra, 108 N.J. at 91. The Pierce Court determined such fact-finding went beyond the mere finding of a defendant's prior conviction and therefore violated the Sixth Amendment. Pierce, supra, 188 N.J. at 167-68.
To remedy the constitutional infirmities inherent in the Dunbar paradigm, the Court established a different standard for the imposition of a discretionary extended term sentence. Id. at
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168-69. The Court found that where a defendant's prior convictions permit the imposition of a discretionary extended term sentence under N.J.S.A. 2C:43-3(a), the convictions alone expose the defendant to the maximum sentence within the extended term range. Id. at 168. Therefore, judicial fact-finding related to the protection of the public does not violate the principles in Apprendi and Blakely by impermissibly increasing the defendant's maximum sentencing exposure. Id. at 173-74. Fact-finding about the protection of the public can be properly considered in imposing a sentence up to the maximum within the sentencing range. Ibid.
The Court concluded that because there is no finding of fact required to expose defendant to the maximum sentence within the extended term sentencing range, the discretionary extended term statute was constitutional under Apprendi and Blakely. Id. at 169. The Court further found that the sentencing court could consider the need to protect the public but because that finding no longer determined "whether [the] defendant is subject to a sentence up to the top of the extended-term range," and only would be considered to determine a sentence within the permissible sentencing range, application of N.J.S.A. 2C:43-3(a) did not violate the defendant's Sixth Amendment rights. Id. at 170 (emphasis in original).
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Here, the singular fact supporting defendant's exposure to the special sentence of parole supervision for life is his conviction for second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a). N.J.S.A. 2C:43-6.4(a) expressly authorizes the imposition of parole supervision for life upon a defendant's conviction of second-degree endangerment under N.J.S.A. 2C:24-4(b)(5)(a). Defendant was exposed to imposition of parole supervision for life based solely on his conviction. No additional judicial fact-finding was required.
N.J.S.A. 2C:43-6.4(a) permits the court to withhold imposition of parole supervision for life where it finds the "sentence is not needed to protect the community or deter the defendant from future criminal activity." The judge's fact- finding concerning the need to protect the community and deter defendant from future criminal activity, however, did not determine defendant's exposure to parole supervision for life. Rather, the court's fact-finding constituted a permissible exercise of discretion in determining if defendant should not receive parole supervision for life – a sentence for which he was exposed solely due to his conviction. As the Court found in Pierce, a court may engage in fact-finding to determine a sentence
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less than the maximum allowable based on a defendant's conviction.3 Pierce, supra, 188 N.J. at 169-70. That is precisely what the judge did here.
III.
Defendant also challenges the court's finding that parole supervision was required to protect the community and deter defendant from engaging in future criminal activity. He asserts that the record shows that he never sexually abused any of his daughters and that the court's finding he had a "willingness to exploit his children for his own sexual gratification" is unsupported by the record. Defendant also claims that parole supervision for life is unnecessary because he will otherwise be monitored based on his compliance with the requirements of his Megan's Law sentence.
We review a "trial court's 'sentencing determination under a deferential [abuse of discretion] standard of review.'" State v. Grate, 220 N.J. 317, 337 (2014) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)); see also Pierce, supra, 188 N.J. at 169-70 (2006) ("On appellate review, the court will apply an abuse of
3 In Pierce, the Court determined the defendant's exposure to the maximum sentence within the extended term sentencing range did not involve impermissible judicial fact-finding because it was based solely on the defendant's conviction for which he was being sentenced and his prior convictions. Pierce, supra, 188 N.J. at 169.
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discretion standard to the sentencing court's explanation for its sentencing decision within the entire range."). We affirm a sentence if: (1) the trial court followed the sentencing guidelines; (2) its findings of fact and application of aggravating and mitigating factors were based on competent, credible evidence in the record; and (3) the application of the law to the facts does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When reviewing a trial court's sentencing decision, we will not "substitute [our] judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014).
Having reviewed the record, we discern no basis to reverse the court's imposition of parole supervision for life. Contrary to defendant's claim, the court did not find he sexually abused his children or rely upon such a finding to support its sentencing decision. The record shows, however, defendant discussed his children in sexually graphic ways with strangers on the internet, and expressed interest in having sexual relations with his daughters as part of a course of conduct that included his transmission of child pornography. When considered in that context, the court's determination that defendant willingly exploited his children for his own sexual gratification is supported by the record.
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Defendant's conduct, as found by the judge and supported by the record, demonstrated an active interest in having sexual relations with children. In his explicit and repeated communications with strangers, he expressed that interest and also distributed child pornography. The court was aware it imposed a Megan's Law sentence, but further determined parole supervision for life was required for the protection of the community and to deter defendant from future criminal activity. The court's determination is supported by the record and does not shock our judicial conscience.
Affirmed.