STATE OF NEW JERSEY VS. SHAWN JACKSON (89-12-3501 AND 90-11-3310, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 9, 2019
• Docket: A-0227-18T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0227-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN JACKSON, a/k/a RA'ZULU S. UKAWABUTU, and SEAN JACKSON,

Defendant-Appellant. ____________________________

Submitted October 7, 2019 – Decided December 9, 2019

Before Judges Fasciale and Moynihan.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 89-12-3501 and 90-11-3310.

Ra'Zulu S. Ukawabutu, appellant pro se.

Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Mario Christopher Formica, Deputy First Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Shawn Jackson, a/k/a Ra'zulu S. Ukawabutu, appeals from the

June 6, 2018 trial court order denying his motion to correct an illegal sentence.

On appeal, defendant argues:

POINT ONE

BECAUSE THE TRIAL COURT FAILED TO MAKE ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW IN SUPPORT OF ITS ORDER DENYING . . . DEFENDANT'S [RULE] 3:21-10(b)(5) MOTION TO CORRECT AN ILLEGAL SENTENCE THE ORDER SHOULD BE REVERSED AND THE MATTER SHOULD BE REMANDED FOR CONSIDERATION OF . . . DEFENDANT'S CLAIMS.

POINT TWO

THE TRIAL COURT FAILED TO MERGE THE TWO COUNTS OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE; FAILED TO MERGE ONE OF THE TWO UNDERLYING PREDICATE OFFENSES (KIDNAPPING AND ROBBERY) INTO THE FELONY MURDER CONVICTION; FAILED TO ARTICULATE ANY FINDINGS AS TO WHICH OFFENSE WAS THE FIRST IN TIME PREDICATE OFFENSE; AND FAILED TO ADHERE TO THE YARBOUGH STANDARD FOR THE IMPOSITION OF A CONSECUTIVE SENTENCE, THEREFORE THE SENTENCE SHOULD BE VACATED AND REMANDED FOR A NEW SENTENCING HEARING.

POINT THREE

THE PRESENTENCING CONDITIONS WERE VIOLATED BY THE SENTENCE IMPOSED,

A-0227-18T4 2 WHICH WAS FAR MORE SEVERE THAN THE SENTENCE . . . DEFENDANT COULD HAVE RECEIVED HAD COUNSEL PROPERLY ADVISED DEFENDANT OF THE PLEA OFFER OF [THIRTY] YEARS BEFORE DEFENDANT'S PENALTY PHASE AND SENTENCING HEARINGS OR HAD COUNSEL SIMPLY SECURED THE PLEA OFFER THAT WAS MADE.

We agree only with defendant's argument that the sentencing judge did not set

forth reasons for imposing a consecutive sentence and remand for resentencing.

During the guilt phase of a capital murder bench trial, defendant was

found guilty of all counts of an indictment charging him with: two counts of

third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts one

and three); two counts of third-degree possession of a weapon for unlawful

purpose, N.J.S.A. 2C:39-4(a) (counts two and four); two separate counts of first-

degree conspiracy to commit kidnapping and robbery, N.J.S.A. 2C:5-2 (counts

five and seven, respectively); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1)

(count six); first-degree robbery, N.J.S.A. 2C:15-1(a)(3) (count eight); third-

degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count nine); and first-degree

felony murder, N.J.S.A. 2C:11-3(a)(3) (count ten). Defendant was also found

guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), the sole count in an

indictment that apparently superseded count eleven of the first indictment

A-0227-18T4 3 charging the same crime. The trial judge did not find sufficient evidence to

warrant imposition of the death penalty.

Defendant was sentenced on June 20, 1991, to an aggregate sentence of

life plus fifteen years with thirty-five years of parole ineligibility: fifteen years

with five years of parole ineligibility for kidnapping to be served consecutively

to life imprisonment with thirty years of parole ineligibility for murder. All

other counts of the indictment either merged or resulted in concurrent sentences.

After a remand to allow defendant to challenge the admissibility of oral and

taped statements to police, see State v. Jackson, 272 N.J. Super. 543, 565 (App.

Div. 1994), we affirmed defendant's conviction; our Supreme Court denied

certification after we reviewed the results of the remand, State v. Jackson, No.

A-4364-03 (App. Div. Dec. 9, 2005) (slip op. at 2 n.1); State v. Jackson, 142

N.J. 450 (1995).

Defendant filed a pro se motion to the trial court, dated March 10, 2017, 1

to correct an illegal sentence, pursuant to Rule 3:21-10(b), and for an evidentiary

1 Although dated March 10, 2017, the proof of service provided by defendant indicates the motion papers were given to prison staff for mailing on April 10, 2017. We were not provided with a filed copy of any of the moving papers. In its merits brief, the State allows appellant filed the motion on or about March 9, 2017.

A-0227-18T4 4 hearing, pursuant to Rule 3:22-10(b), together with a supporting affidavit,

supplemental certification, and brief, in which he delineated his trial counsel's

failures to obtain and later convey a plea offer and set forth his rehabilitation

efforts since his incarceration. He also contended his sentence was illegal

because: the trial court failed to merge kidnapping, "the first in time predicate,"

into felony murder; "there was no weighing of aggravating versus mitigating

factors pursuant to State v. Yarbo[ugh], 100 N.J. 627 (1985), or reasoning

provided by the sentencing [judge] for running the kidnapping count consecutive

rather than merging this count;" the sentencing judge was under the mistaken

belief that a life sentence with thirty years of parole ineligibility "was the only

statutorily permissible sentence," and did not consider a sentence to a lesser term

of years.2

On February 16, 2018, defendant's public defender sent a letter to the

motion judge "with respect to defense's [m]otion for [r]econsideration of

2 Defendant also raised several other points in his motion including: his sentence was "disparate to that of . . . co-defendant Darryl Welch whose convictions were all merged or run concurrent, specifically the kidnapping count;" defendant was sentenced on counts that were dismissed upon the return of the superseding indictment; and "race played a significant role in defendant's case being charged as a capital case, and was the result of impermissible systematic bias[.]" Defendant, however, has not briefed these issues; as such they are deemed waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived."). A-0227-18T4 5 [s]entence[,]" and repeated that characterization of the motion later in her

correspondence. Counsel argued the sentencing judge should have found

mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), and, on resentencing,

mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), should apply because of

defendant's rehabilitative efforts while in prison.

At the April 4, 2018 motion hearing, defense counsel reiterated

defendant's rehabilitation efforts while in prison and the arguments set forth in

her letter regarding mitigating factors. Counsel argued the Rule 3:21-10(b)(5)

exception to Rule 3:21-10(a) time bar should apply because mitigating factors

were not considered at sentencing. 3

3 Rule 3:21-10(a) provides:

Except as provided in [Rule 3:21-10(b)], a motion to reduce or change a sentence shall be filed not later than [sixty] days after the date of the judgment of conviction. The court may reduce or change a sentence, either on motion or on its own initiative, by order entered within [seventy-five] days from the date of the judgment of conviction and not thereafter.

Rule 3:21-10(b)(5) allows a motion to reduce or change a sentence may be filed at any time to correct "a sentence not authorized by law including the Code of Criminal Justice[.]"

A-0227-18T4 6 In an oral decision following argument, the motion judge, while seemingly

addressing the issues raised in defense counsel's letter, reviewed the proffer

regarding mitigating factors nine and eleven. Although the motion judge

reviewed all of the Rule 3:21-10(b) exceptions, she did not address the issues

raised in defendant's pro se motion, except to conclude none of the exceptions

to the time bar applied to permit granting the notice of motion which the judge

stated was filed on January 17, 2018, 4 "well beyond" the time period prescribed

in Rule 3:21-10(a), considering the judgment of conviction was entered in June

1991. Specific to the exception provided in Rule 3:21-10(b)(5), the judge found:

"This [c]ourt has been unable to find on the record before it that [the sentencing

judge] entered an illegal sentence. So this [c]ourt does find that exception five

does not apply."

As stated, the only order provided in the record is that dated June 6, 2018.

Because the order—in letter form—provided only that the judge "received

[defendant's] most recent [m]otion to [c]orrect an [i]llegal sentence and

4 In their merits briefs, neither the State nor defendant reference a motion filed on January 17, 2018, either by defendant or counsel. Although defendant stated his counsel "filed a separate motion for reduction and/or reconsideration of sentence, which was distinct from . . . defendant's pending R[ule] 3:21-10(b)(5) motion to correct an illegal sentence[,]" the record does not contain that notice of motion. A-0227-18T4 7 accompanying documents[,]" and did not find "any merit" to his claims, we

cannot discern if the order memorialized the judge's April 4, 2018 oral decision

or defendant's motion for reconsideration of that decision in which he argued

his pro se motion was not addressed. In any event, we will address those issues

argued in defendant's merits brief and review de novo the motion judge's denial

of the motion to correct an illegal sentence. State v. Drake, 444 N.J. Super. 265,

271 (App. Div. 2016).

Defendant argues the motion judge failed to analyze whether the

kidnapping and robbery charges should have merged into his convict ion for

felony murder, citing State v. Pantusco, 330 N.J. Super. 424, 428-29 (App. Div.

2000) and State v. Hill, 365 N.J. Super. 463, 472 (App. Div. 2004), for the

principle that when a defendant is convicted of felony murder, the predicate

offenses must merge into the felony murder offense. Pantusco and Hill are

inapposite because the defendants in those cases were not tried for murder.

Pantusco, 330 N.J. Super. at 429; Hill, 365 N.J. Super. at 466. As we noted in

Pantusco, "if a defendant is convicted of purposeful or knowing murder, as well

as felony murder, the predicate felonies would not merge." 330 N.J. Super. at

445 n.7 (citation omitted).

A-0227-18T4 8 The sentencing judge merged defendant's convictions for felony murder

conviction and murder. As we did in State v. Russo, 243 N.J. Super. 383, 411

(App. Div. 1990),

we reject defendant's argument that his conviction for [the predicate offense] should have merged with his conviction for felony murder. Because defendant was convicted not only of felony murder but also purposeful and knowing murder, the felony murder conviction was "surplusage" and thus the underlying felony . . . was not required to be merged into it.

[See ibid. (quoting State v. Stenson, 174 N.J. Super. 402, 406-07 (Law Div. 1980), aff'd o.b., 188 N.J. Super. 361 (App. Div. 1982)).]

We do, however, agree with defendant that the sentencing judge failed to

articulate reasons justifying the imposition of a consecutive sentence on the

kidnapping conviction. After stating the length of term, the sentencing court

simply said, "and that is consecutive to the life sentence. I say consecutive, not

concurrent." Although at the outset of his sentencing decision, the judge

mentioned two of the aggravating factors 5 "the State might be able to establish"

to warrant imposition of the death penalty, "namely, that it was a murder that

was committed in the course of a robbery and that it was committed to silence[]

5 Prior to the Legislature's elimination of the death penalty, L. 2007, c. 204, N.J.S.A. 2C:11-3(c)(4) listed the aggravating factors which may have been found by a trier of fact in determining whether to impose the death penalty. A-0227-18T4 9 the victim in this case," the judge did not apply any of those findings before

imposing the consecutive sentence even though they may have supported such

a sentence.

Recognizing that "there can be no free crimes in a system for which the

punishment shall fit the crime[,]" our Supreme Court mandated that "the reasons

for imposing either a consecutive or concurrent sentence should be separately

stated in the sentencing decision[.]" Yarbough, 100 N.J. at 643; see generally

R. 3:21-4(g). The Court also provided

some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not: (a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence or threats of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) any of the crimes involved multiple victims; (e) the convictions for which the sentences are to be imposed are numerous[.]

[Id. at 644.]

If "a sentencing court properly evaluates the Yarbough factors in light of

the record, the court's decision will not normally be disturbed on appeal." State

A-0227-18T4 10 v. Miller, 205 N.J. 109, 129 (2011). "[I]f[, however,] the court does not explain

why consecutive sentences are warranted, a remand is ordinarily needed for the

judge to place reasons on the record." Ibid.

We are constrained to remand this case for resentencing at which the

resentencing judge must consider whether a consecutive sentence for kidnapping

is warranted under the facts of this case. We note the sentencing judge, in

rendering his decision during the guilt phase admitted that he made only

"general findings" but said he made "them specific by saying that essentially the

facts in this case are based upon the statement made by" defendant to law

enforcement. The judge continued, "I believe the statement made later in the

day which outlines in detail what happened and [defendant's] involvement in it

is the true version[.]" We thus commend that statement to the judge for review

prior to resentencing.

Inasmuch as the sole purpose of the remand is to set forth reasons for the

imposition of a consecutive or concurrent sentence, "such a remand [is] more

technical in nature, that is, for the purpose of putting explanatory information

on the record, but also the Yarbough analysis itself, which focuses primarily on

the circumstances of the crimes committed[.]" State v. Randolph, 210 N.J. 330,

A-0227-18T4 11 353 (2012). As such, resentencing "does not fairly implicate defendant's

rehabilitation efforts." See ibid.

We are not persuaded by defendant's remaining arguments. Although

defendant did not address this issue in his merits brief, the sentencing judge did

not sentence defendant on a dismissed count. He sentenced defendant on the

murder charge set forth in the superseding indictment. Defendant's argument

that the judge was under the mistaken impression that a life sentence was

mandatory is belied by the record; the judge stated only the parole ineligibility

period was mandatory. Defendant did not argue to the motion judge, as he does

in his merits and reply briefs, that the sentencing judge erred in failing to merge

"two counts of possession of a weapon for an unlawful purpose" into the

substantive offense of robbery.6 We will not consider that argument first raised

on appeal. State v. Robinson, 200 N.J. 1, 20 (2009).

6 In defendant's brief, he argues that "his sentence is illegal because the trial judge failed to merge his two counts of possession of a weapon for an unlawful purpose ([c]ounts one and [t]hree)[.]" In defendant's reply brief, however, he concedes that he "mistakenly lists the counts for the possession of a weapon for an unlawful purpose as [c]ounts [o]ne and [t]hree instead of [c]ounts [t]wo and [f]our."

A-0227-18T4 12 We determine any other of defendant's arguments to be without sufficient

merit to warrant discussion in this opinion, Rule 2:11-3(e)(2), adding that his

ineffective assistance of counsel arguments, not raised in either of his previous

post-conviction relief petitions—the denial of which we affirmed, see State v.

Jackson, No. A-1725-00 (App. Div. Oct. 3, 2002) 7; State v. Jackson, No. A-

4986-12 (App. Div. Dec. 1, 2015) (slip op. at 4)—do not relate to an issue

cognizable under Rule 3:21-10(b)(5). Further, the record makes clear the

sentencing judge did not double-count aggravating factor one;8 the judge's

finding that this was a "cold[-]blooded, unbelievably depraved execution of the

victim," was supported by the record which reveals the victim was transported

to a wooded area after he refused to reveal his address to defendant, who then

fired seven bullets into the victim's head "in order to prevent the victim from

being a witness against him."

7 This court referenced the existence of this opinion in State v. Jackson, No. A- 5146-12 (App. Div. Dec. 1, 2015) (slip op. at 1 n.2), however, it was not in the record and was unable to be located on either Westlaw or Lexis. 8 Although the judge did not include aggravating factor one in the orders for commitment, his oral sentencing decision makes clear that he intended its application. "[W]here there is a conflict between the oral sentence and the written commitment, the former will control if clearly stated and adequately shown[.]" State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). A-0227-18T4 13 Remanded to the Law Division for resentencing in accordance with this

decision. We do not express any view as to the outcome of the resentencing,

and we do not retain jurisdiction.

A-0227-18T4 14