                                NOT FOR PUBLICATION WITHOUT THE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-0227-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHAWN JACKSON, a/k/a
RA'ZULU S. UKAWABUTU,
and SEAN JACKSON,

     Defendant-Appellant.
____________________________

                    Submitted October 7, 2019 – Decided December 9, 2019

                    Before Judges Fasciale and Moynihan.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment Nos. 89-12-3501
                    and 90-11-3310.

                    Ra'Zulu S. Ukawabutu, appellant pro se.

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (Mario Christopher Formica, Deputy
                    First Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Shawn Jackson, a/k/a Ra'zulu S. Ukawabutu, appeals from the

June 6, 2018 trial court order denying his motion to correct an illegal sentence.

On appeal, defendant argues:

            POINT ONE

            BECAUSE THE TRIAL COURT FAILED TO MAKE
            ANY FINDINGS OF FACT OR CONCLUSIONS OF
            LAW IN SUPPORT OF ITS ORDER DENYING . . .
            DEFENDANT'S [RULE] 3:21-10(b)(5) MOTION TO
            CORRECT AN ILLEGAL SENTENCE THE ORDER
            SHOULD BE REVERSED AND THE MATTER
            SHOULD BE REMANDED FOR CONSIDERATION
            OF . . . DEFENDANT'S CLAIMS.

            POINT TWO

            THE TRIAL COURT FAILED TO MERGE THE TWO
            COUNTS OF POSSESSION OF A WEAPON FOR AN
            UNLAWFUL PURPOSE; FAILED TO MERGE ONE
            OF THE TWO UNDERLYING PREDICATE
            OFFENSES (KIDNAPPING AND ROBBERY) INTO
            THE FELONY MURDER CONVICTION; FAILED
            TO ARTICULATE ANY FINDINGS AS TO WHICH
            OFFENSE WAS THE FIRST IN TIME PREDICATE
            OFFENSE; AND FAILED TO ADHERE TO THE
            YARBOUGH STANDARD FOR THE IMPOSITION
            OF A CONSECUTIVE SENTENCE, THEREFORE
            THE SENTENCE SHOULD BE VACATED AND
            REMANDED FOR A NEW SENTENCING
            HEARING.

            POINT THREE

            THE PRESENTENCING CONDITIONS WERE
            VIOLATED BY THE SENTENCE IMPOSED,

                                                                         A-0227-18T4
                                       2
            WHICH WAS FAR MORE SEVERE THAN THE
            SENTENCE . . . DEFENDANT COULD HAVE
            RECEIVED HAD COUNSEL PROPERLY ADVISED
            DEFENDANT OF THE PLEA OFFER OF [THIRTY]
            YEARS BEFORE DEFENDANT'S PENALTY PHASE
            AND SENTENCING HEARINGS OR HAD
            COUNSEL SIMPLY SECURED THE PLEA OFFER
            THAT WAS MADE.

We agree only with defendant's argument that the sentencing judge did not set

forth reasons for imposing a consecutive sentence and remand for resentencing.

      During the guilt phase of a capital murder bench trial, defendant was

found guilty of all counts of an indictment charging him with: two counts of

third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts one

and three); two counts of third-degree possession of a weapon for unlawful

purpose, N.J.S.A. 2C:39-4(a) (counts two and four); two separate counts of first-

degree conspiracy to commit kidnapping and robbery, N.J.S.A. 2C:5-2 (counts

five and seven, respectively); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1)

(count six); first-degree robbery, N.J.S.A. 2C:15-1(a)(3) (count eight); third-

degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count nine); and first-degree

felony murder, N.J.S.A. 2C:11-3(a)(3) (count ten). Defendant was also found

guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2), the sole count in an

indictment that apparently superseded count eleven of the first indictment



                                                                         A-0227-18T4
                                       3
charging the same crime. The trial judge did not find sufficient evidence to

warrant imposition of the death penalty.

      Defendant was sentenced on June 20, 1991, to an aggregate sentence of

life plus fifteen years with thirty-five years of parole ineligibility: fifteen years

with five years of parole ineligibility for kidnapping to be served consecutively

to life imprisonment with thirty years of parole ineligibility for murder. All

other counts of the indictment either merged or resulted in concurrent sentences.

After a remand to allow defendant to challenge the admissibility of oral and

taped statements to police, see State v. Jackson, 272 N.J. Super. 543, 565 (App.

Div. 1994), we affirmed defendant's conviction; our Supreme Court denied

certification after we reviewed the results of the remand, State v. Jackson, No.

A-4364-03 (App. Div. Dec. 9, 2005) (slip op. at 2 n.1); State v. Jackson, 142

N.J. 450 (1995).

      Defendant filed a pro se motion to the trial court, dated March 10, 2017, 1

to correct an illegal sentence, pursuant to Rule 3:21-10(b), and for an evidentiary



1
   Although dated March 10, 2017, the proof of service provided by defendant
indicates the motion papers were given to prison staff for mailing on April 10,
2017. We were not provided with a filed copy of any of the moving papers. In
its merits brief, the State allows appellant filed the motion on or about March 9,
2017.


                                                                             A-0227-18T4
                                         4
hearing, pursuant to Rule 3:22-10(b), together with a supporting affidavit,

supplemental certification, and brief, in which he delineated his trial counsel's

failures to obtain and later convey a plea offer and set forth his rehabilitation

efforts since his incarceration. He also contended his sentence was illegal

because: the trial court failed to merge kidnapping, "the first in time predicate,"

into felony murder; "there was no weighing of aggravating versus mitigating

factors pursuant to State v. Yarbo[ugh], 100 N.J. 627 (1985), or reasoning

provided by the sentencing [judge] for running the kidnapping count consecutive

rather than merging this count;" the sentencing judge was under the mistaken

belief that a life sentence with thirty years of parole ineligibility "was the only

statutorily permissible sentence," and did not consider a sentence to a lesser term

of years.2

      On February 16, 2018, defendant's public defender sent a letter to the

motion judge "with respect to defense's [m]otion for [r]econsideration of


2
    Defendant also raised several other points in his motion including: his
sentence was "disparate to that of . . . co-defendant Darryl Welch whose
convictions were all merged or run concurrent, specifically the kidnapping
count;" defendant was sentenced on counts that were dismissed upon the return
of the superseding indictment; and "race played a significant role in defendant's
case being charged as a capital case, and was the result of impermissible
systematic bias[.]" Defendant, however, has not briefed these issues; as such
they are deemed waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657
(App. Div. 2011) ("An issue not briefed on appeal is deemed waived.").
                                                                           A-0227-18T4
                                        5
[s]entence[,]" and repeated that characterization of the motion later in her

correspondence.     Counsel argued the sentencing judge should have found

mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), and, on resentencing,

mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), should apply because of

defendant's rehabilitative efforts while in prison.

       At the April 4, 2018 motion hearing, defense counsel reiterated

defendant's rehabilitation efforts while in prison and the arguments set forth in

her letter regarding mitigating factors. Counsel argued the Rule 3:21-10(b)(5)

exception to Rule 3:21-10(a) time bar should apply because mitigating factors

were not considered at sentencing. 3




3
    Rule 3:21-10(a) provides:

             Except as provided in [Rule 3:21-10(b)], a motion to
             reduce or change a sentence shall be filed not later than
             [sixty] 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 [seventy-five] days from the date of the
             judgment of conviction and not thereafter.

Rule 3:21-10(b)(5) allows a motion to reduce or change a sentence may be filed
at any time to correct "a sentence not authorized by law including the Code of
Criminal Justice[.]"



                                                                         A-0227-18T4
                                         6
      In an oral decision following argument, the motion judge, while seemingly

addressing the issues raised in defense counsel's letter, reviewed the proffer

regarding mitigating factors nine and eleven.       Although the motion judge

reviewed all of the Rule 3:21-10(b) exceptions, she did not address the issues

raised in defendant's pro se motion, except to conclude none of the exceptions

to the time bar applied to permit granting the notice of motion which the judge

stated was filed on January 17, 2018, 4 "well beyond" the time period prescribed

in Rule 3:21-10(a), considering the judgment of conviction was entered in June

1991. Specific to the exception provided in Rule 3:21-10(b)(5), the judge found:

"This [c]ourt has been unable to find on the record before it that [the sentencing

judge] entered an illegal sentence. So this [c]ourt does find that exception five

does not apply."

      As stated, the only order provided in the record is that dated June 6, 2018.

Because the order—in letter form—provided only that the judge "received

[defendant's] most recent [m]otion to [c]orrect an [i]llegal sentence and



4
  In their merits briefs, neither the State nor defendant reference a motion filed
on January 17, 2018, either by defendant or counsel. Although defendant stated
his counsel "filed a separate motion for reduction and/or reconsideration of
sentence, which was distinct from . . . defendant's pending R[ule] 3:21-10(b)(5)
motion to correct an illegal sentence[,]" the record does not contain that notice
of motion.
                                                                          A-0227-18T4
                                        7
accompanying documents[,]" and did not find "any merit" to his claims, we

cannot discern if the order memorialized the judge's April 4, 2018 oral decision

or defendant's motion for reconsideration of that decision in which he argued

his pro se motion was not addressed. In any event, we will address those issues

argued in defendant's merits brief and review de novo the motion judge's denial

of the motion to correct an illegal sentence. State v. Drake, 444 N.J. Super. 265,

271 (App. Div. 2016).

      Defendant argues the motion judge failed to analyze whether the

kidnapping and robbery charges should have merged into his convict ion for

felony murder, citing State v. Pantusco, 330 N.J. Super. 424, 428-29 (App. Div.

2000) and State v. Hill, 365 N.J. Super. 463, 472 (App. Div. 2004), for the

principle that when a defendant is convicted of felony murder, the predicate

offenses must merge into the felony murder offense. Pantusco and Hill are

inapposite because the defendants in those cases were not tried for murder.

Pantusco, 330 N.J. Super. at 429; Hill, 365 N.J. Super. at 466. As we noted in

Pantusco, "if a defendant is convicted of purposeful or knowing murder, as well

as felony murder, the predicate felonies would not merge." 330 N.J. Super. at

445 n.7 (citation omitted).




                                                                          A-0227-18T4
                                        8
      The sentencing judge merged defendant's convictions for felony murder

conviction and murder. As we did in State v. Russo, 243 N.J. Super. 383, 411

(App. Div. 1990),

            we reject defendant's argument that his conviction for
            [the predicate offense] should have merged with his
            conviction for felony murder. Because defendant was
            convicted not only of felony murder but also purposeful
            and knowing murder, the felony murder conviction was
            "surplusage" and thus the underlying felony . . . was not
            required to be merged into it.

            [See ibid. (quoting State v. Stenson, 174 N.J. Super.
            402, 406-07 (Law Div. 1980), aff'd o.b., 188 N.J. Super.
            361 (App. Div. 1982)).]

      We do, however, agree with defendant that the sentencing judge failed to

articulate reasons justifying the imposition of a consecutive sentence on the

kidnapping conviction. After stating the length of term, the sentencing court

simply said, "and that is consecutive to the life sentence. I say consecutive, not

concurrent."   Although at the outset of his sentencing decision, the judge

mentioned two of the aggravating factors 5 "the State might be able to establish"

to warrant imposition of the death penalty, "namely, that it was a murder that

was committed in the course of a robbery and that it was committed to silence[]


5
  Prior to the Legislature's elimination of the death penalty, L. 2007, c. 204,
N.J.S.A. 2C:11-3(c)(4) listed the aggravating factors which may have been
found by a trier of fact in determining whether to impose the death penalty.
                                                                          A-0227-18T4
                                        9
the victim in this case," the judge did not apply any of those findings before

imposing the consecutive sentence even though they may have supported such

a sentence.

      Recognizing that "there can be no free crimes in a system for which the

punishment shall fit the crime[,]" our Supreme Court mandated that "the reasons

for imposing either a consecutive or concurrent sentence should be separately

stated in the sentencing decision[.]" Yarbough, 100 N.J. at 643; see generally

R. 3:21-4(g). The Court also provided

              some reasons to be considered by the sentencing court
              should include facts relating to the crimes, including
              whether or not:
                    (a) the crimes and their objectives were
                    predominantly independent of each other;
                    (b) the crimes involved separate acts of
                    violence or threats of violence;
                    (c) the crimes were committed at different
                    times or separate places, rather than being
                    committed so closely in time and place as
                    to indicate a single period of aberrant
                    behavior;
                    (d) any of the crimes involved multiple
                    victims;
                    (e) the convictions for which the sentences
                    are to be imposed are numerous[.]

              [Id. at 644.]

      If "a sentencing court properly evaluates the Yarbough factors in light of

the record, the court's decision will not normally be disturbed on appeal." State

                                                                         A-0227-18T4
                                       10
v. Miller, 205 N.J. 109, 129 (2011). "[I]f[, however,] the court does not explain

why consecutive sentences are warranted, a remand is ordinarily needed for the

judge to place reasons on the record." Ibid.

      We are constrained to remand this case for resentencing at which the

resentencing judge must consider whether a consecutive sentence for kidnapping

is warranted under the facts of this case. We note the sentencing judge, in

rendering his decision during the guilt phase admitted that he made only

"general findings" but said he made "them specific by saying that essentially the

facts in this case are based upon the statement made by" defendant to law

enforcement. The judge continued, "I believe the statement made later in the

day which outlines in detail what happened and [defendant's] involvement in it

is the true version[.]" We thus commend that statement to the judge for review

prior to resentencing.

      Inasmuch as the sole purpose of the remand is to set forth reasons for the

imposition of a consecutive or concurrent sentence, "such a remand [is] more

technical in nature, that is, for the purpose of putting explanatory information

on the record, but also the Yarbough analysis itself, which focuses primarily on

the circumstances of the crimes committed[.]" State v. Randolph, 210 N.J. 330,




                                                                         A-0227-18T4
                                      11
353 (2012).    As such, resentencing "does not fairly implicate defendant's

rehabilitation efforts." See ibid.

      We are not persuaded by defendant's remaining arguments. Although

defendant did not address this issue in his merits brief, the sentencing judge did

not sentence defendant on a dismissed count. He sentenced defendant on the

murder charge set forth in the superseding indictment. Defendant's argument

that the judge was under the mistaken impression that a life sentence was

mandatory is belied by the record; the judge stated only the parole ineligibility

period was mandatory. Defendant did not argue to the motion judge, as he does

in his merits and reply briefs, that the sentencing judge erred in failing to merge

"two counts of possession of a weapon for an unlawful purpose" into the

substantive offense of robbery.6 We will not consider that argument first raised

on appeal. State v. Robinson, 200 N.J. 1, 20 (2009).




6
   In defendant's brief, he argues that "his sentence is illegal because the trial
judge failed to merge his two counts of possession of a weapon for an unlawful
purpose ([c]ounts one and [t]hree)[.]" In defendant's reply brief, however, he
concedes that he "mistakenly lists the counts for the possession of a weapon for
an unlawful purpose as [c]ounts [o]ne and [t]hree instead of [c]ounts [t]wo and
[f]our."



                                                                           A-0227-18T4
                                       12
      We determine any other of defendant's arguments to be without sufficient

merit to warrant discussion in this opinion, Rule 2:11-3(e)(2), adding that his

ineffective assistance of counsel arguments, not raised in either of his previous

post-conviction relief petitions—the denial of which we affirmed, see State v.

Jackson, No. A-1725-00 (App. Div. Oct. 3, 2002) 7; State v. Jackson, No. A-

4986-12 (App. Div. Dec. 1, 2015) (slip op. at 4)—do not relate to an issue

cognizable under Rule 3:21-10(b)(5).       Further, the record makes clear the

sentencing judge did not double-count aggravating factor one;8 the judge's

finding that this was a "cold[-]blooded, unbelievably depraved execution of the

victim," was supported by the record which reveals the victim was transported

to a wooded area after he refused to reveal his address to defendant, who then

fired seven bullets into the victim's head "in order to prevent the victim from

being a witness against him."




7
  This court referenced the existence of this opinion in State v. Jackson, No. A-
5146-12 (App. Div. Dec. 1, 2015) (slip op. at 1 n.2), however, it was not in the
record and was unable to be located on either Westlaw or Lexis.
8
  Although the judge did not include aggravating factor one in the orders for
commitment, his oral sentencing decision makes clear that he intended its
application. "[W]here there is a conflict between the oral sentence and the
written commitment, the former will control if clearly stated and adequately
shown[.]" State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).
                                                                         A-0227-18T4
                                      13
      Remanded to the Law Division for resentencing in accordance with this

decision. We do not express any view as to the outcome of the resentencing,

and we do not retain jurisdiction.




                                                                    A-0227-18T4
                                     14
