State v. McDonald

39 A.3d 171, 209 N.J. 549, 2012 N.J. LEXIS 512
CourtSupreme Court of New Jersey
DecidedFebruary 6, 2012
DocketA-56 September Term 2010, 066773
StatusPublished
Cited by4 cases

This text of 39 A.3d 171 (State v. McDonald) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McDonald, 39 A.3d 171, 209 N.J. 549, 2012 N.J. LEXIS 512 (N.J. 2012).

Opinions

Justice LaVECCHIA

delivered the opinion of the Court.

This appeal is the companion to State v. Hudson, 209 N.J. 513, 39 A.3d 150 (2012), because it also involves the application of N.J.S.A. 2C:44-5(b) to an extended-term sentence. Here, the sentence was imposed on defendant Sally McDonald for an offense committed prior to an offense for which she already was serving another extended-term sentence. As in Hudson, the second extended term was imposed in a separate sentencing proceeding from that in which the first extended-term sentence was imposed. Consistent with the interpretation given N.J.S.A. 2C:44-5 in State v. Hudson, supra, we now reverse and remand for resentencing because it was error for the sentencing court to have imposed a second extended-term sentence on defendant in these circumstances.

I.

The procedural context to the sentencing in this matter requires brief summary. This appeal is taken from defendant’s sentencing on charges that originated on August 21, 2006, when she and her father were indicted in Monmouth County Indictment No. 06-08-1822 for second-degree theft by deception for conduct occurring “on diverse dates from late 2000 to January, 2006” (Count One) [551]*551and for fourth-degree forgery for conduct occurring “on or about diverse dates in 2003 through January, 2006” (Count Six).

The underlying facts are that McDonald borrowed $1.7 million from her victim, J.P., under the pretense that she would use the money to buy a Kentucky horse farm. In reality, McDonald intended to use, and did use, the money for her own purposes, not to purchase a horse farm. For six years, J.P. sought repayment, while McDonald presented him with false information and fraudulent documentation to support her fabrication that the money had been frozen by the courts. In creating the fraudulent documents, McDonald (and allegedly her co-defendant father) forged the signatures of a public defender and an assignment judge. The defendants also uttered numerous bad cheeks and doctored bank statements to create the impression of a positive bank balance.

After the indictment issued, McDonald executed a plea agreement, pursuant to which she entered an open plea—one making her “subject to the maximum statutory time” for the offenses—on Counts One and Six of the indictment. The plea form also indicated that McDonald was “subject to a discretionary extended term.” The court accepted McDonald’s plea on June 2, 2008. During the plea colloquy, McDonald acknowledged that she was subject to a discretionary extended term on the second-degree theft-by-deception charge. She also acknowledged understanding that, with the extended term, she faced a maximum term on the two offenses of twenty-one-and-one-half years and that, because her plea was open ended, any sentence could be consecutive to the sentence of eight years with a three-year period of parole ineligibility that she was serving at the time of sentencing.

At sentencing on August 8, 2008, the State moved for a discretionary extended term and noted that McDonald was presently serving an eight-year term1 with a three-year period of parole ineligibility “for similar crimes that were committed all within the [552]*552same time frame of the present crime.” Defense counsel did not dispute that McDonald met the requirements of a persistent offender under N.J.S.A 2C:44-3, but argued that pursuant to N.J.S.A. 2C:44-5(a) she should not receive another extended term in addition to the one she was serving. The court agreed with the prosecutor that although the court could not impose an extended term on both of the counts before it, the statute did not mean that if McDonald “received an extended term once in the past, she can never get another one.”

The judge concluded that McDonald qualified for an extended term and that, under State v. Pierce, 188 N.J. 155, 169, 902 A.2d 1195 (2006), and N.J.S.A. 2C:43-7(a)(3), the range of the sentence on McDonald’s second-degree offense was between five (bottom of ordinary-term range) and twenty (top of extended-term range) years. The State sought a ten-year sentence with a five-year period of parole ineligibility and requested that the sentence be served consecutively to McDonald’s other prison terms. Defense counsel argued against a consecutive extended term and requested instead a flat sentence between eight and ten years to be served concurrently with the sentences she was presently serving.

Calling McDonald’s prior record “deplorable,” in that her criminal record started in 1986 as a juvenile, her first adult arrest was in March 1990, and her record continued through the time of sentencing in 2008, the court concluded that McDonald was a danger to the public in that she “resorts to fraud to meet her financial needs.” The court found the presence of aggravating factors three (risk defendant will commit another offense), six (extent of defendant’s prior record and seriousness of offenses), and nine (need to deter defendant and others), see N.J.S.A. 2C:44-1(a), and found no mitigating factors, see N.J.S.A 2C:44-1 (b). The court specifically rejected defense counsel’s argument on mitigating factor one that “defendant’s conduct neither caused nor threatened serious harm,” N.J.S.A 2C:44-l(b)(l), because she stole over one million dollars from a victim, and also rejected mitigating factor six that “defendant has compensated or will [553]*553compensate the victim,” N.J.S.A. 2G:44-l(b)(6), because, even though there were civil cases pending for the money stolen, the court did not believe that the instant victim would be compensated. Finding further that the aggravating factors outweighed the mitigating factors and that a consecutive sentence was appropriate because the present crime was separate from the crimes for which McDonald was presently serving prison terms, the court imposed the sentence under appeal.

On the second-degree theft-by-deception charge (Count One), the court imposed an extended-term sentence of a twelve-year term with a six-year period of parole ineligibility to run consecutively to the sentence McDonald was presently serving. On the fourth-degree forgery charge (Count Six), the court imposed an eighteen-month term to run concurrently with Count One. The court awarded gap-time credits because the offenses were pending at the time she was sentenced on her prior offense. The Appellate Division affirmed in an unpublished decision and we granted defendant’s petition for certification. State v. McDonald, 205 N.J. 79, 12 A.3d 211 (2011).

II.

Importantly, for present purposes in this appeal, we must consider the state of defendant’s prior convictions and sentences. According to the presentence report, at the time she was sentenced for the offenses at issue, McDonald had a juvenile offense from 1986 and fifteen adult charges in Municipal or Superior Court beginning in 1990, which resulted in three Municipal Court convictions and nine prior Superior Court convictions. McDonald’s nine Superior Court convictions all related to bad-checks or theft offenses, and all involved different victims.

Prior to the sentencing at issue, McDonald was sentenced as follows on five occasions for those earlier convictions: (1) October 12, 2004 on Indictment Nos.

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State v. McDonald
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Bluebook (online)
39 A.3d 171, 209 N.J. 549, 2012 N.J. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcdonald-nj-2012.