Opinion
DOCKET NO. A-0935-13T4
02-16-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GOLDA HARRIS, Defendant-Appellant.
Golda Harris, appellant pro se. Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-06-0493. Golda Harris, appellant pro se. Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Golda Harris, who is self-represented, appeals from the July 24, 2013 order denying as untimely her motion to reduce or change her sentence. We affirm.
On September 29, 2008, at the conclusion of defendant's trial, a jury convicted her of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); two counts of third-degree criminal mischief, N.J.S.A. 2C:17-3(a); two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4. The facts underlying defendant's conviction are detailed in our opinion affirming her conviction on direct appeal, State v. Harris, Docket No. A-4493-08 (App. Div. Sept. 30, 2011), certif. denied, 210 N.J. 262 (2012), and need not be recounted at length in this opinion. Suffice it to say the State presented evidence establishing defendant vandalized the car of a man who had been residing at her home, repeatedly drove her Ford Explorer into the rear of the man's girlfriend's parked car, attempted to run over the man, and struck two other parked cars.
On December 12, 2008, the court denied defendant's motion to set aside the verdict and grant a new trial. After appropriate mergers, the court sentenced defendant to an aggregate prison term of seven years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judgment of conviction was filed ten days later, on December 22, 2008. Defendant filed a notice of appeal on May 7, 2009. By then, more than 120 days had elapsed following the filing of the judgment of conviction and defendant had not filed a motion to reduce or change her sentence. Rule 3:21-10 requires a defendant to file motion to reduce or change a sentence not later than sixty days after the date of the judgment of conviction.
In August 2009, three months after filing a direct appeal challenging her conviction and sentence, defendant filed a verified petition for post-conviction relief (PCR). The trial court filed an order on January 27, 2010, denying the petition. The court cited Rule 3:22-3 ("[A PCR petition] is not, however, a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending."); and State v. Cummings, 321 N.J. Super. 154, 167 (App. Div.) (noting Rule 3:22-3 "bars the filing of a petition while appellate review is available"), certif. denied, 162 N.J. 199 (1999). Defendant did not refile her PCR petition.
Thereafter, an attorney representing defendant filed a motion for change of sentence. The trial court denied the motion in an order filed on July 24, 2013. On January 15, 2014, we granted defendant's motion to file a notice of appeal out of time. This appeal followed.
The motion has not been included in the appellate record.
On appeal, defendant makes four arguments:
POINT I.
POST-CONVICTION RELIEF MOTIONS TIMELY SUBMITTED AND EXCEPTIONS.
POINT II.
NO EARLY RELEASE ACT EXTENDED TERMS NOT [M]ET; NO INJURY WAS ESTABLISHED; UNCONSTITUTIONALITY OF NEW JERSEY'S NO EARLY RELEASE ACT.
POINT III.
ABUSE OF DISCRETION BY TRIAL COURT JUDGE.
POINT IV.
APPELLANT[']S MENTAL, PHYSICAL AND MEDICAL CONDITIONS NOT CONSIDERED.
We decline to consider defendant's first argument concerning ineffective assistance of counsel. Nothing in the record suggests she refiled her ineffective-assistance claim after her direct appeal from the judgment of conviction was affirmed. Moreover, the order from which defendant appeals does not address ineffective assistance claims. Rather, it states: "ORDERED that the defendant's motion for change of sentence is hereby DENIED because it was filed out of time and does not fall within one of the exceptions permitted by Rule 3:21-10." For that reason, we turn to defendant's arguments in Points II, III, and IV concerning her sentence.
We begin by noting our agreement with the trial court that defendant's motion for a reduction or change of sentence was untimely filed. Rule 3:21-10(a) states:
Except as provided in paragraph (b) hereof, a motion to reduce or change a sentence shall be filed not later than 60 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 75 days from the date of the judgment of conviction and not thereafter.The exceptions in Rule 3:21-10 (b) are:
(1) changing a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant, or (3) changing a sentence for good cause shown upon the joint application of the defendant and prosecuting attorney, or (4) changing a sentence as authorized by the Code of Criminal Justice, or (5) correcting a sentence not authorized by law including the Code of Criminal Justice, or (6) changing a custodial sentence to permit entry into the Intensive Supervision Program, or (7) changing or reducing a sentence when a prior conviction has been reversed on appeal or vacated by collateral attack.None applies here.
Notwithstanding defendant's untimely filing, her arguments are devoid of merit. In Point II, defendant contends she was not subject to NERA for several reasons: her alleged victims sustained no physical injury; the statute requires a hearing to establish serious bodily injury; the statute requires the commission of aggravated assault, not merely attempted aggravated assault; and NERA is unconstitutional.
Defendant's first two arguments appear to be based on subsections of NERA as originally enacted. The relevant subsections on N.J.S.A. 2C:43-7.2, as originally enacted, provided:
a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section.
. . . .
d. For the purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S.2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.
For the purposes of this section, "deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury.
e. A court shall not impose sentence pursuant to this section unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to him of the ground
proposed. The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue.
[N. J.S.A. 2C:43-7.2.]
The statute was amended by L. 2001, c. 129, §1 to eliminate the definitions contained in the original subsection (d) and replace them with specific enumerated offenses. Subsection (e) was eliminated in its entirety. Subsection (d) includes aggravated assault:
NERA has been amended on other occasions, but none of its other amendments are implicated by defendant's arguments. --------
d. The court shall impose sentence pursuant to subsection a. of this section upon conviction of the following crimes or an attempt or conspiracy to commit any of these crimes:
. . . .
(4) subsection b. of [N.J.S.A.] 2C:12-1, aggravated assault[.]
Not only has defendant mistaken a previous version of NERA for the version in effect when she committed her offenses and was sentenced, she has also misapprehended the elements of aggravated assault. Under N.J.S.A. 2C:12-1(b)(1), a person commits the crime of aggravated assault — the crime defendant was convicted of committing — if she "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" Thus, an "attempt" to cause seriously bodily injury to another constitutes the crime of aggravated assault.
Lastly, defendant argues NERA is unconstitutional because it allows the trial judge to sentence beyond the statutory minimum sentence based on judicial fact-finding. This argument is also based on a previous version of the statue. The current statue does not require fact-finding, but rather enumerates crimes that subject a defendant to NERA. Moreover, our Supreme Court has held that when a judge considers sentencing factors to determine parole disqualifiers, and the sentencing factors are not the elements of a crime and do not increase the maximum punishment for the crime, neither the federal nor state constitutional rights to due process and trial by jury are violated. State v. Abdullah, 184 N.J. 497, 511-12 (2005) (holding N.J.S.A. 2C:43-6(b) constitutional); see also, State v. Velasquez, 391 N.J. Super. 291, 320 (App. Div. 2007) (holding factual predicates for NERA term — based on the stature as originally enacted — need not be presented to a grand jury).
We have considered defendant's remaining arguments, as well as the arguments in her recently filed reply brief, and found them to lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only this. On direct appeal, we determined the sentencing judge had appropriately weighed aggregating and mitigating factors and sentenced defendant within the range for a second-degree offense. Harris, supra, Docket No. A-4493-08 (App. Div. September 30, 2011), slip op. at 19. We discerned "no legal reason to interfere with the sentence imposed by the trial court." Ibid. We discern none now.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION