State v. Morente-Dubon
| Decision Date | 19 December 2022 |
| Docket Number | DOCKET NO. A-0459-20 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Welder D. MORENTE-DUBON, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).
Matthew J. Platkin, Attorney General, attorney for respondent (Lauren Bonfiglio, Deputy Attorney General, of counsel and on the brief).
Before Judges Geiger, Berdote Byrne and Fisher.
The opinion of the court was delivered by
GEIGER, J.A.D.
In this opinion we address the judicial factfinding undertaken by the trial court as part of its sentencing analysis that found facts contrary to the jury's verdict. We also address the improper application of aggravating factor four, N.J.S.A. 2C:44-1(a)(4), and the need for the court to explain in greater detail how it reconciles its application of aggravating factor three, N.J.S.A. 2C:44-1(a)(3), and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), the weight assigned to those factors, and how those factors are balanced with respect to a defendant who had no prior juvenile or criminal history and no subsequent criminal history in the decade that elapsed before his arrest.
Tried to a jury, defendant Welder D. Morente-Dubon was convicted of the lesser-included offense of second-degree passion-provocation manslaughter, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon. Following merger, he was sentenced to a nine-and-one-half-year prison term, subject to the periods of parole ineligibility and parole supervision imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals his sentence, arguing the trial court misapplied the statutory aggravating and mitigating factors. We vacate defendant's sentence and remand for resentencing.
The crimes were committed when defendant was twenty-one years old and working as an employee at a used-tire shop. Defendant was the only person scheduled to work that day because the owner of the shop was on vacation. As a result, defendant called his aunt and received permission for his sixteen-year-old cousin, Walter Alvarez, to help him at the shop. Alvarez had occasionally helped at the shop in the past.
A regular customer, Joseph Tremarco, entered the shop to make a purchase. Defendant alleged an argument ensued after Tremarco accused him of "shorting" the order. The argument escalated to the point of violence. Defendant alleged Tremarco punched him, pushed him to the ground, and kicked him in the abdomen. Defendant claimed that despite telling Tremarco to stop, he did not. He further alleged "he looked around the room" for an "object that he thought he could use to defend himself," saw a baseball bat within his reach, grabbed the bat, "got up as fast as he could," and "swung it in Tremarco's direction." Defendant does not dispute he killed Tremarco by striking him in the head four times with the bat.
Defendant then enlisted Alvarez to assist him in covering up the death. They dragged Tremarco's body across the shop and defendant placed it in Tremarco's truck. Defendant drove the truck to a residential neighborhood, and directed Alvarez, who did not have a license, to follow him in the shop's minivan. Defendant abandoned Tremarco's truck and drove Alvarez back to the shop in the minivan. They then cleaned up Tremarco's blood with rags, wrapped the rags in carpets, and put the carpets in the shop's minivan. Defendant then took Alvarez home and continued his workday.
Defendant then fled to Guatemala where he lived for almost ten years until he was extradited back to New Jersey to face charges of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2), fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and second-degree hindering apprehension through witness intimidation, N.J.S.A. 2C:29-3(b)(3). Ultimately, the case proceeded to trial.
The State disputed defendant's characterization of the incident. Relying on Alvarez as a witness, the State asserted that "[t]here was no argument" between Tremarco and defendant, and instead, defendant committed a "knowing and purposeful killing from behind," which Tremarco "never saw [ ] coming." Relying again on Alvarez's testimony, the State further asserted defendant threatened to kill Alvarez if he did not help cover up the incident. Defendant denied these assertions, arguing that Alvarez's statements to the police were inconsistent and therefore his testimony was unreliable.
Defendant claimed self-defense and passion/provocation. The jury found defendant guilty of the lesser-included offense of passion-provocation manslaughter and the two weapons counts, and not guilty of hindering.
Defendant was sentenced on September 17, 2020. The trial court initially noted the sentencing range for passion/provocation manslaughter was five to ten years. The State sought the maximum term of ten years, arguing that aggravating factors one, three, and nine applied, N.J.S.A. 2C:44-1(a)(1), (3), and (9), and no mitigating factors applied. The State did not request the court to apply aggravating factor four, N.J.S.A. 2C:44-1(a)(4).
Defendant sought the minimum term of five years, arguing that mitigating factors seven and nine applied, N.J.S.A. 2C:44-1(b)(7) and (9), and aggravating factor one did not apply. Defendant pointed out he had not committed any new offenses in the thirteen years since the homicide occurred, had matured, and was now "a very different man." Defendant also requested defendant's age be considered as a mitigating factor, noting that pending legislation would add a new mitigating factor fourteen for defendants who were under the age of twenty-six at the time the offense was committed.
The court found aggravating factors one ("nature and circumstances of the offense," defendant's role in committing the offense, and whether "it was committed in an especially heinous, cruel, or depraved manner"), three (risk defendant will commit another offense), four ("defendant took advantage of a position of trust or confidence to commit the offense"), and nine ("need for deterring the defendant and others from violating the law").
As to aggravating factor one, the court stated:
The court also noted that aggravating factor one could be applied to passion-provocation cases. The court explained that "[a] jury's reasonable doubt that the State has [disproved] the mitigating elements of passion provocation manslaughter is not the equivalent for sentencing purposes of an affirmative finding of fact that the defendant was reasonably provoked to passion and killed before [reason had] sufficient time to regain its sway." Finally, the trial court noted that because defendant engaged in "extraordinary brutality," application of aggravating factor one did not constitute double counting. The court gave aggravating factor one "moderate weight."
As to aggravating factor three, the court stated:
The defendant's deliberate and extensive efforts of concealment and his utter lack of remorse bespeak [the] continued risk that he will commit another offense. In addition, the defendant here was quite easily provoked to brutal rage followed immediately by cool,...
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State v. Weathers
...45 IV. In his final point, defendant relies on State v. Melvin, 248 N.J. 321 (2021), and our decision in State v. Morente-Dubon, 474 N.J.Super. 197 (App. Div. 2022), and argues we should vacate his sentence and remand for a new sentencing proceeding because the court's sentence was "fundame......