State v. Cook
| Decision Date | 21 November 2022 |
| Docket Number | A-4405-19 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. DONELL COOK, a/k/a JUSTIN WALKER, Defendant-Appellant. |
| Court | New Jersey Superior Court – 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.
Submitted September 28, 2022
On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 14-11-1265.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
Before Judges Currier and Bishop-Thompson.
Defendant appeals from his sentence imposed after a plea agreement. He contends the court increased his sentence by using his failure to appear at a prior sentencing as a non-statutory aggravating factor and in double counting it regarding the bail jumping offense. We disagree and affirm.
In 2014, defendant was driving in New Brunswick when he was stopped by a police officer. As the officer approached defendant's car, defendant proceeded to drive off while the officer held onto the car. The police officer was dragged by the car until it crashed into a parked school bus. After the crash, the officer attempted to arrest defendant and a struggle ensued. During the scuffle, defendant reached for the officer's gun but was unsuccessful in removing the gun from its holster.
Defendant was charged in an indictment with three counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree assault by auto, N.J.S.A. 2C:12-1(c)(3); fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(1); second-degree disarming of a law enforcement officer N.J.S.A. 2C:12-11(a); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3); third-degree hindering one's own apprehension, N.J.S.A. 2C:29-3(b)(4); and fourth-degree obstructing administration of law, N.J.S.A. 2C:29(1)b.
In May 2017, defendant pleaded guilty to one count of second-degree aggravated assault and one count of second-degree disarming a law enforcement officer. The State recommended a seven-year period of incarceration subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. During the plea hearing, the court scheduled sentencing for September 29, 2017. The judge informed defendant:
[Y]ou must be here on that date. Otherwise, a bench warrant will be issued for your arrest. The State may charge you with bail jumping. Your bail may be forfeited. So make sure you are here. I'm going to have you sign something that I advised you of that... [M]ake sure you come . . . back on the sentencing date, okay? Yes?
Defendant responded: "Yes, ma'am."
The court provided defendant with an order that stated
Defendant did not appear on the scheduled sentencing date. Therefore, the court issued a bench warrant and told defense attorney to instruct defendant to turn himself in. Defendant was subsequently apprehended in Georgia in November 2017 and was extradited to New Jersey in April 2018.
During the May 4, 2018 sentencing hearing, the judge stated that she "[was] going to consider the fact that [defendant] did[] [not] show up for [his] sentencing." Defendant explained he did not appear on the sentencing date because he did not have a way of getting to the courthouse, he did not have a job, and he did not have any income.
In sentencing defendant, the court found defendant pleaded guilty to aggravated assault and disarming a police officer, he failed to appear for his sentencing, and he fled to Georgia and did not communicate with the court until he was arrested and extradited to New Jersey. The court noted defendant's prior criminal history including shoplifting, resisting arrest, possession of marijuana under fifty grams, a conditional discharge in New York for possession of marijuana, convictions in New York for several crimes, a conviction in Maine for aggravated assault and aggravated forgery, and prior terms of incarceration. The judge found aggravating factors three, 2C:44-1(a)(3)-risk of committing another offense; six, 2C:44-1(a)(6)-extent of prior record and seriousness of offense; and nine, 2C:44-1(a)(9)-need to deter the defendant from violating the law. There were no mitigating factors.
The court further noted the State was seeking additional jail time as a result of defendant's failure to appear for sentencing. [1] The judge stated there must be consequences for failing to appear. The court sentenced defendant to an eight-year term of incarceration subject to an eighty-five percent period of parole ineligibility under NERA.
However, shortly thereafter, the judge reentered the courtroom, advising she had listened to the May 2017 plea hearing and determined that she had not told defendant there would be additional consequences if he failed to appear for sentencing, including that the court could impose a higher sentence. As a result, the court believed it was prohibited from increasing the sentence without having advised defendant of that risk. Therefore, the judge imposed the original sentence recommended in the 2017 plea agreement of seven years' incarceration with the NERA parole ineligibility.
In November 2018, a grand jury indicted defendant on third-degree bail jumping, N.J.S.A. 2C:29-7. Defendant pleaded guilty to the charge in January 2020. Thereafter, defendant and the State agreed to a plea deal: defendant would be resentenced on the 2014 indictment to nine years' incarceration, with an eighty-five percent NERA parole disqualifier and to a five-year flat sentence on the bail jumping charge to run concurrent with the first sentence.
At the sentencing hearing on June 3, 2020, the court again discussed defendant's lengthy prior criminal history and the specific facts of the present crimes-the assault on a police officer during which the officer sustained serious injuries and the subsequent attempt to grab the officer's gun. The court remarked it was fortunate those actions did not lead to further injuries to the officer or others in the area. The judge then said:
Defendant requested the court apply mitigating factor eleven, 2C:44-1(b)(11)-hardship to dependents-because he has a young daughter. The judge again found aggravating factors three, six, and nine and concluded no mitigating factors were applicable. Defendant was then sentenced on the 2014 indictment to nine years in prison subject to the eighty-five percent NERA parole ineligibility and to a concurrent sentence of five years flat on the bail jumping charge.
On appeal, defendant raises a sole argument for our consideration:
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