NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE 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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4573-13T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIO C. MARCELO a/k/a
JUAN MARTINEZ, and JULIO MORCELO,
Defendant-Respondent.
_________________________________
Submitted October 5, 2016 – Remanded October 25, 2016
Resubmitted August 21, 2017 – Decided September 7, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
11-03-0367.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark H. Friedman, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Lillian Kayed,
Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
This case returns to us after our remand on two points. One
has been resolved.1 The other is whether there was a factual basis
for the trial court's finding of an aggravating factor during
defendant's sentencing proceeding. Based on the remand record,
we affirm defendant's sentence.
A jury found defendant guilty of three counts of first-degree
robbery and one count of second-degree possession of a weapon for
an unlawful purpose, and a judge sentenced him to an aggregate,
extended prison term of twenty-five years. On appeal, we remanded
the case to have the court, among other things, explain certain
aspects of its sentencing decision. State v. Marcelo, No. A-4573-
13 (App. Div. Oct. 25, 2016).
The facts the State developed at trial are detailed in that
opinion, id. (slip op. at 5-7), and need not be recounted in their
entirety. Significant to this appeal, the jury convicted defendant
of the gunpoint robbery of a salon. Present during the robbery
were the salon owner, her son, and two Universal Beauty Products
(UBP) employees. Id. (slip op. at 5). During the robbery,
"[a]fter taking money from the cash register, defendant grabbed
1
The trial court had substituted a juror after deliberations
began, but there was no record of the substitution or the court's
instructions to the jury after the substitution occurred. We
remanded this matter so the court and the parties could reconstruct
the record. The transcript was located. The issue is moot.
2 A-4573-13T1
the salon owner's son and struck him on his chest, arm and head
with the handle of the gun. The salon owner fainted for a brief
period." Ibid. Law enforcement officers apprehended defendant
shortly after the robbery. Id. (slip op. at 5-6).
As previously noted, the jury found defendant guilty of three
counts of first-degree robbery and one count of second-degree
possession of a weapon for an unlawful purpose. At sentencing,
on one robbery count, the court sentenced defendant to an extended
twenty-five-year custodial term subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. On the other two robbery counts,
the court sentenced defendant on each count to a twenty-year
custodial term subject to NERA, the sentences to be served
concurrently to each other and to the twenty-five-year sentence
imposed on count two. The court merged the weapons offense. Id.
(slip op. at 4). During defendant's sentencing proceeding:
[t]he court determined defendant was extended-
term eligible as a persistent offender; found
the aggravating factors enumerated in N.J.S.A.
2C:44-1(a) (1) (nature and circumstances of
the offense), (3) (risk of re-offense), (6)
(extent of prior criminal record and
seriousness of offenses), (9) (need for
deterrence), and (12) (victim was a person
who defendant knew or should have known was
sixty years of age or older, or disabled); and
sentenced defendant to a twenty-five year
prison term on one of the first-degree robbery
counts.
[Id. (slip op. at 15).]
3 A-4573-13T1
We concluded the trial court had not violated the sentencing
guidelines and the sentence did not shock the judicial conscience.
Nonetheless, we remanded the matter in part, explaining:
Here, it does not appear the trial court
violated the sentencing guidelines, and
defendant's sentence does not shock the
judicial conscience in light of the record.
The trial court did, however, find one
aggravating factor that does not appear to be
supported by the record, namely, N.J.S.A.
2C:44-1(a)(12) (defendant knew or should have
known a victim was age sixty or older).2
Although in the absence of mitigating factors
this may be a meaningless error, in view of
the extended term sentence and the court's
reasoning for imposing the sentence, we remand
for the court to amplify the record by
explaining the basis for its finding.
If the court's finding of aggravating factor
twelve has no basis in the record, the issue
needs to be addressed. On remand, the court
shall amplify the record by explaining the
basis for finding aggravating factor twelve.
If there is no support in the record for this
finding, the court shall explain what effect,
if any, the oversight had on the court's
sentencing analysis. If resentencing is
appropriate, the court shall resentence
defendant.
[Id. (slip op. at 16-17).]
2
The State appends to its brief a police report containing the
age — sixty or older — of one of the victims. We assume the State
obtained this document from the pre-sentence report. The trial
court, however, did not reference the document when sentencing
defendant. Assuming the document was the basis for the court's
finding, the court did not explain either how defendant knew the
victim was age sixty or older or why defendant should have known
the victim was age sixty or older.
4 A-4573-13T1
We retained jurisdiction.
The trial judge explained his reason for finding aggravating
factor twelve as follows:
I recall from the trial that one of the victims
was clearly over 60. I recall that from her
appearance. I don't remember who it was.
I don't remember whether it was the owner
of the salon or another woman who was present
during the robbery. And I don't have any real
way of telling who it was. But, I know that
one of the victims was clearly -- a woman --
was clearly over 60. And the robbery itself
was not a two minute ordeal. I don't remember
exactly how long the robbery was. I guess the
videotape shows it. But, it was a rather
prolonged event.
. . . .
The victims were not wearing stockings
or masks. And it had to be apparent to the
defendant that one of the women -- and again,
I'm not sure which one she was -- was clearly
over 60. You could tell by looking at her,
both in the video and her age at the time of
trial was such that at the time of the robbery
she was -- she couldn't look that much
different. She clearly was over 60. That was
the basis for it. Does anybody have a
transcript of the sentencing?
MS. CIANCIMINO: Judge, I do.
THE COURT: Did the prosecutor bring that up?
Did the prosecutor ask -- because I have seen
a transcript of the sentencing, and I haven't
listened to the CourtSmart for it. Did the
prosecutor ask me to find Aggravating Factor
12?
MS. CIANCIMINO: Judge, I believe that -- it
5 A-4573-13T1
seems too that Mr. Gaulkin submitted something
in writing asking Your Honor to consider those
aggravating factors. There was reference to
something that was probably submitted to the
Court.
THE COURT: Okay. And there -- was something
said out loud though at the sentencing by the
assistant prosecutor about that?
MS. CIANCIMINO: Yes. Judge, Mr. Gaulkin did
-- it looks like he noted in his brief to the
Court, he was asking Your Honor to find
Aggravating Factor 1. And then also three,
six, nine and 12. And he references, as were
noted on Page 2 of my letter memorandum. But,
he did not go into detail regarding
Aggravating Factor 12.[3]
Indisputably, "the aggravating and mitigating factors found
by the sentencing court [must be] based upon competent and credible
evidence in the record[.]" State v. Fuentes, 217 N.J. 57, 70
(2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). The
issue before us, really, is what constitutes competent and credible
evidence in the record; or, more specifically, what constitutes
competent evidence of a victim's age for purposes of aggravating
factor number twelve. Mindful that appearances can be deceiving,
it is arguable that one's appearance per se can never be considered
competent evidence of aggravating factor twelve. On the other
hand, it may be that an elderly person's appearance is such that
3
Contrary to our assumption in our original opinion, see n.2,
supra, the police report was not part of the trial or sentencing
record.
6 A-4573-13T1
no one could reasonably dispute that the person is sixty years old
or older.
Here, at sentencing, the trial court did not explain the
basis for its finding of aggravating factor twelve. On remand,
in addition to explaining its reasons, the trial court noted:
"But, . . . she was clearly, most obviously over [sixty], not just
at the time of the trial, but at the time of the robbery also.
You could just see that. In fact, it was so obvious probably
that's why I didn't identify her, and probably that's why . . .
the assistant prosecutor didn't mention . . . which one it was."
Because there was no proof at trial concerning any of the
victims' ages, and because the court at sentencing relied solely
on its perception of the victims' age, the better practice would
have been for the judge to discuss the issue with counsel at
sentencing before making a decision. Doing so would have given
defendant the opportunity to address the issue if he thought,
contrary to the court's view on remand, that one could not conclude
solely from the victim's appearance that she was at least sixty
years old.
Having said that, we note defendant did not object to the
court's finding of aggravating factor twelve at sentencing.
Defendant, who was represented at trial by the same attorney who
represented him at sentencing, did not contest the judge's finding
7 A-4573-13T1
of aggravating factor twelve or dispute that the victim was
obviously sixty years old. Consequently, we review the argument
for plain error, that is, error clearly capable of reaching an
unjust result. R. 2:10-2.
As we noted in our original opinion, the trial court found
no mitigating factors when it sentenced defendant. Marcelo, supra,
No. A-4573-13, (slip op. at 17). Moreover, the attorney who tried
the case did not contest the court's finding of aggravating factor
twelve at sentencing, and appellate counsel has submitted on the
appellate record no evidence to the contrary, despite the trial
court's reference to a video. For those reasons, we cannot find
plain error in the trial court's finding of aggravating factor
number twelve. We therefore affirm defendant's convictions and
sentence.
Affirmed.
8 A-4573-13T1
STATE OF NEW JERSEY VS. JULIO C. MARCELOÂ (11-03-0367, HUDSON COUNTY AND STATEWIDE)
Combined Opinion