Opinion
DOCKET NO. A-0771-13T1
04-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WAYNE M. EVANS, a/k/a BRUCE EVANS, LAMAR EVANS, LAMAR GREEN, DWAYNE EDWARDS, IAMAR GREEN, SHAWN SPELLMAN, MARK THOMPSON, WAYNE TOLLER, BRUCE A. EVANS, WAYNE E. EVANS, WAYNE L. EVANS, WAYNE Z. EVANS, WAYNE MEACHUM EVANS, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the briefs). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, O'Connor and Suter. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-06-0661. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the briefs). Jeffrey P. Mongiello, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Mongiello, of counsel and on the briefs). PER CURIAM
In this direct appeal, defendant Wayne M. Evans raises various arguments contesting his conviction and sentence for possession of cocaine with the intent to distribute it and other related offenses. We affirm.
The State's proofs at the jury trial established the following pertinent facts. At about 1:00 a.m. on March 4, 2010, police officers on routine patrol in Hillside observed a Ford Explorer idling in the middle of the street. Defendant was behind the wheel of the vehicle and its sole occupant. When the police asked defendant to get out, he immediately activated the remote automatic door lock to prevent them from entering the vehicle, an act that raised the officers' suspicions.
Defendant admitted to the officers that the Explorer was not his vehicle, that he did not have a driver's license, and that he did not know the location of the vehicle's registration. The officers consequently went inside the vehicle to look for the registration. At that point an officer discovered a plastic baggie containing what appeared to be cocaine. The baggie was found in a cup holder inside the console, about six inches from the driver's seat. The baggie was confiscated. Its contents were tested, and confirmed to be about twenty grams of cocaine.
A grand jury indicted defendant and charged him with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count 1); second-degree possession of cocaine with intent to distribute it, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (count 2); and third-degree possession of cocaine with intent to distribute it within 1,000 feet of a school, N.J.S.A. 2C:35-7 (count 3). After defendant unsuccessfully moved to suppress the fruits of the warrantless vehicle search, the case was tried before a jury over four days in April and May 2013. The jury found defendant guilty of all three counts of the indictment.
Defendant does not challenge on appeal the legality of the search of the vehicle, nor does he contest the quantity of cocaine that was found.
Following the jury's verdict, the trial judge granted the State's motion for an extended term in light of defendant's prior criminal record. The judge imposed a sixteen-year custodial sentence with an eight-year parole disqualifier on count two. The judge merged count one into count two, and imposed a concurrent five-year sentence on count three. This appeal ensued.
Defendant contends that:
POINT I
THE TRIAL COURT COMMITTED STRUCTURAL, REVERSIBLE ERROR WHEN IT PRESENTED AN OVERLY BROAD AND VAGUE INSTRUCTION ON THE LAW OF CONSTRUCTIVE POSSESSION. (Not Raised Below).
POINT II
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT MR. EVANS WAS GUILTY OF THE SCHOOL ZONE OFFENSE, THAT CONVICTION MUST BE DISMISSED AS A MATTER OF LAW. (Not Raised Below).
POINT III
THE SENTENCING COURT SHOULD HAVE MERGED THE CONVICTION FOR DISTRIBUTION WITHIN 1000 FEET OF A SCHOOL ZONE WITH THE POSSESSION WITH INTENT CONVICTION.
POINT IV
THE IMPOSITION OF A DISCRETIONARY PERIOD OF PAROLE INELIGIBILITY IS UNCONSTITUTIONAL AND MUST BE STRICKEN BY THIS COURT.
A. N.J.S.A. 2C:43-6(b) Violates The Sixth Amendment Because It Allows For Increased Punishment Based On A Fact Found By A Judge Rather Than A Jury.
B. Background.
C. Alleyne v. United States
D. Mr. Evans's Sentence.
The State concedes the merger point regarding count three, although that does not affect defendant's aggregate sentence because the sentence on that count was concurrent. For the reasons that follow, we reject defendant's remaining points.
POINT V
MR. EVANS'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
After this court inquired of counsel regarding the applicable subsection of the extended term statute, defendant clarified that he was relying on N.J.S.A. 2C:43-6(f), rather than N.J.S.A. 2C:43-6(b). We have considered the post-argument supplemental briefs on this issue, which the parties submitted at our invitation. --------
Defendant first challenges the court's jury charge as to possession. In particular, he argues that the court prejudicially erred in failing to state during the portion of the charge that explained the concept of constructive possession that a defendant's "mere presence" at the location of contraband is insufficient to establish guilt of such possession. We reject this argument, which notably was not raised below and thus is considered under a "plain error" scope of review. State v. Walker, 203 N.J. 73, 89-90 (2010).
Although the law does recognize that a defendant's mere presence is not sufficient to support an inference of possession, see State v. Jackson, 326 N.J. Super. 276, 280 (App. Div. 1999), the charge provided by the court here was adequate under the circumstances. The charge essentially tracked the applicable model charge for possession. Model Jury Charge (Criminal), "Possession (N.J.S.A. 2C:2-1)" (2005). "[O]rdinarily the model jury instruction leaves no 'room to doubt that "mere presence" [is] insufficient to bring about a finding of the necessary elements of possession.'" State v. Randolph, 441 N.J. Super. 533, 559 (App. Div. 2015) (second alteration in original) (quoting State v. Montesano, 298 N.J. Super. 597, 612-15 (App. Div.), certif. denied, 150 N.J. 27 (1997)).
Defendant claims that the model charges are per se defective because they do not explicitly instruct the jury that "mere presence" is insufficient to support a finding of constructive possession. He argues that this omission could have led the jury in this case to incorrectly find that he constructively possessed the cocaine simply because he was present in the vehicle where the cocaine was found, regardless of whether he had the right to control those drugs. He asserts, by analogy, that the model charge could support a weapons conviction of a person simply because he was standing in proximity to a police officer's sidearm. We reject this fanciful argument.
To be sure, under certain factual circumstances, a jury instruction on "mere presence" may be appropriate in a contraband possession case. See, e.g., Randolph, supra, 441 N.J. Super. at 559-60 (finding that a "mere presence" instruction was necessary in that case, where there was a "paucity of proofs connecting [the] defendant to . . . CDS found in [an] apartment" and where the jury requested clarification on constructive possession); Jackson, supra, 326 N.J. Super. at 281-82 (finding that the jury charge regarding possession was inadequate because it failed to distinguish between CDS found on the defendant's person and CDS found in an apartment in which there was no evidence linking defendant to it beyond being an overnight guest). However, our review of a jury charge on appeal should focus upon the actual facts and circumstances of the case, rather than upon broad assertions based on inapposite hypotheticals. See State v. Lenihan, 219 N.J. 251, 269 (2014) (observing, by analogy, that a party seeking to test a law for vagueness must base his or her challenge "only with respect to his or her particular conduct" and that "multiple hypotheticals about the law's potential vagueness are irrelevant").
Here, defendant was indisputably parked in a vehicle with the engine running in the middle of a street late at night. He was alone in the vehicle and could not produce any driving credentials after being pulled over by police. He had locked the vehicle immediately after being ordered to step out of it, and refused to unlock it despite multiple requests from the officers at the scene. The cocaine was found by police in plain view in a cup holder in the center console of that vehicle, a few inches from where defendant had been sitting. No evidence was produced to the contrary.
Given these facts, there was clearly sufficient evidence to support a reasonable inference that defendant knew the drugs were present, understood their nature, and both intended and had the capacity to exercise control over them. See State v. Spivey, 179 N.J. 229, 236-37 (2004). This is not a case where there was a "paucity of proofs" connecting defendant to the vehicle and the drugs within it that may have led the jury, in the absence of an explicit instruction on mere presence, to find constructive possession of the drugs solely from his presence. See Randolph, supra, 441 N.J. Super. at 559-60; Jackson, supra, 326 N.J. Super. at 281-82. The fact that defendant did not own the Ford Explorer does not exonerate him of constructive possession of the drugs found within it. Indeed, his conduct in locking the vehicle to impede police entry into it is strongly supportive of his intent to maintain dominion and control over the drugs located in the center console.
Defendant's criticisms of the model charge are unavailing in this factual setting. Even if, for the sake of discussion, we agreed with his criticisms, there was no error "clearly capable of producing an unjust result," considering the strength of the State's case and the lack of evidence refuting the State's account of the incident. Walker, supra, 203 N.J. at 90.
Defendant's second point is that there was insufficient proof he possessed the drugs within the 1,000 foot radius of a school because the record does not show that the school depicted on the State's map, which was admitted into evidence without objection, was "regularly, consistently, and actually" used for school purposes on the date of his conduct. He also complains that the municipal ordinance adopting the map was not admitted into evidence. This argument also fails.
The parties stipulated that the map in evidence "constitutes an official finding and accurate record as to the location and boundaries . . . of property owned by or leased to any elementary or secondary school or school board which is used for school purposes." (Emphasis added). No evidence to the contrary was elicited. The State's evidence that defendant was found within 1,000 feet of the school, as depicted on the map, was also uncontroverted. Given the stipulation and the absence of competing proof, the jury was entitled to adopt the presumption of his possession within a school zone. See State v. Thomas, 132 N.J. 247, 258-59 (1993); N.J.S.A. 2C:35-7(f). In any event, as conceded by the State, this particular conviction in count three has merged into the conviction on count two.
With respect to his sentence, defendant maintains that the parole disqualifier of one-half of his base term imposed by the trial court pursuant to N.J.S.A. 2C:43-6(f) is unconstitutional in light of the United States Supreme Court's holding in Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We disagree.
In Apprendi, the United States Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455. Thirteen years later, in Alleyne, the Court extended the holding in Apprendi to encompass mandatory minimum sentences. Alleyne, supra, ___ U.S. at ___, 133 S. Ct. at 2158, 186 L. Ed. 2d at 324. The Court was careful to note, however, that neither Apprendi nor Alleyne are meant to eliminate a judge's "broad sentencing discretion, informed by judicial factfinding" in selecting "a sentence within the range authorized by law." Id. at ___, 133 S. Ct. at 2163, 186 L. Ed. 2d at 330 (emphasis added); see also Apprendi, supra, 530 U.S. at 481, 120 S. Ct. at 2358, 147 L. Ed. 2d at 449 (same).
Here, defendant was exposed to the mandatory minimum term pursuant to N.J.S.A. 2C:43-6(f) solely due to his prior conviction of a similar crime, a circumstance that falls within the "fact of a prior conviction" exception expressed in Apprendi. See State v. Thomas, 188 N.J. 137, 151-52 (2006). The trial judge then exercised discretion based on other judicial findings in selecting a sentence within the sentencing range authorized by subsection 6(f).
Our Supreme Court rejected a similar claim of unconstitutionality in State v. Pierce, 188 N.J. 155, 169-71 (2006). In Pierce, the defendant challenged his extended term because the judge had imposed the sentence using the familiar aggravating and mitigating factors found under N.J.S.A. 2C:44-1(a) and (b). The Court held that the application of New Jersey's sentencing scheme in that setting was constitutional because the defendant was subject to an extended term due to a prior conviction, and the judge was permitted to use other judicially-found facts in selecting a sentence within that statutory range. Pierce, supra, 188 N.J. at 169-71.
In his supplemental post-argument brief, defendant quarrels with the definition of the term "prescribed statutory range," as it was used by the United States Supreme Court in Apprendi and Alleyne. He contends that, because subsection 6(f) requires a minimum term of between one-third and one-half of the sentence imposed, the alleged effective "range" for purposes of Sixth Amendment analysis begins at one-third of the sentence. Therefore, he asserts, sentencing him to a minimum of one-half of his total sentence changes that "range." This flawed reasoning misinterprets Alleyne's holding.
The constitutional violation in Alleyne was an aggravation of a defendant's sentencing exposure based on judicially-found facts, above what was prescribed by the Legislature as the minimum for the specific crime committed in the absence of those facts:
While Harris declined to extend this principle to facts increasing mandatory minimum sentences, Apprendi's definition of "elements" necessarily includes not only facts that increase the ceiling, but also those that increase the floor. Both kinds of facts alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.This analytic focus on a defendant's mandatory minimum exposure, rather than on the sentence actually imposed, is expressed in several other parts of the Court's opinion in Alleyne. For example:
[Alleyne, supra, 133 S. Ct. at 2158, 186 L. Ed. 2d at 324 (emphasis added).]
Similarly, because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received if a different range had been applicable. Indeed, if a judge were to find
a fact that increased the statutory maximum sentence, such a finding would violate the Sixth Amendment, even if the defendant ultimately received a sentence falling within the original sentencing range[.]
[Id. at 2162, 186 L. Ed. 2d at 329 (emphasis added).]
Here, the fact of defendant's prior conviction rendering him a persistent offender required a mandatory minimum sentence, as prescribed by statute, of one-third to one-half of his base term. The trial judge appropriately exercised his discretion in choosing a term within that range. See State v. Grate, 220 N.J. 317, 336-37 (2015) (recognizing, in light of Alleyne, a sentencing judge's continued ability to exercise discretion based on judicially-found facts "within the statutory range"). This is not a case where a statute prescribed a minimum of only one-third of his sentence, but the judge further increased the limits of the range based on other judicially-found facts. Defendant's exposure, as articulated by the one-third-to-one-half range was determined solely by a fact explicitly allowed for by both Apprendi and Alleyne.
Defendant's final argument contending that his sentence is manifestly excessive lacks sufficient merit to warrant extensive comment. R. 2:11-3(e)(2). Defendant has nine prior indictable convictions, including several very serious offenses such as kidnapping and aggravated assault. We discern no abuse of discretion in the court's weighing of the aggravating factors and the non-existent mitigating factors in reaching the sentence that was justifiably imposed for this chronic repeat offender. State v. Case, 220 N.J. 49, 64-65 (2014); State v. Bieniek, 200 N.J. 601, 608-09 (2010).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION