                                 NOT FOR PUBLICATION WITHOUT THE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-2852-16T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

BRANDON G. DIXON,

     Defendant-Appellant.
____________________________

                    Submitted December 12, 2018 – Decided March 15, 2019

                    Before Judges Alvarez and Mawla.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 13-11-
                    1560.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stefan Van Jura, Deputy Public Defender, of
                    counsel and on the brief).

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Nicole Handy, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Tried by a jury, defendant Brandon G. Dixon was convicted of first-degree

felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A.

2C:15-1(a)(1) and (2); as well as second-degree desecration of human remains,

N.J.S.A. 2C:22-1(a)(1). He was acquitted of third-degree arson, N.J.S.A. 2C:17-

1(b)(5). On June 22, 2016, the judge sentenced him to an extended term as a

repeat violent offender, pursuant to N.J.S.A. 2C:43-7.1(b), to a term of life

imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the

first-degree felony murder and robbery, to be served concurrent to a seven-year

term of imprisonment on the desecration of human remains offense. We now

affirm.

      The following facts and circumstances are taken from the record of the

week-long trial. On January 25, 2013, defendant killed the victim, Charles

Bauer, during a robbery planned by defendant and his co-defendant, Ryan J.

Sweet. According to the Burlington County Medical Examiner, the victim died

as a result of poor oxygen delivery to his brain. The only explanation for the

death was that the victim was put in a "sleeper hold" and died as a result because

he was not expecting the assault and therefore did not struggle. The scratches

and marks on the victim's face and torso were consistent with his body being

dragged post-mortem over rough surfaces for a short distance.


                                                                          A-2852-16T4
                                        2
      Also charged with second-degree desecration of the victim's body were

the following: Patrick N. Bush, Ryan J. Sweet, and Paul C. Martell. Sweet's

mother was separately charged with fourth-degree hindering, N.J.S.A. 2C:29-

3(a)(7). Sweet was charged with the amended offense of first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a). Andrew J. Baith was charged with third-

degree desecration of human remains, N.J.S.A. 2C:22-1(b). With the exception

of defendant's mother and Martell, all entered guilty pleas and testified against

defendant.

      At the time of the killing, Sweet and his sixteen-year-old girlfriend were

the parents of a two-month-old baby. The girlfriend had flirted with the victim

on Facebook when she and Sweet had a falling-out, and when she reconciled

with Sweet, she asked him to stop the victim from contacting her. Sweet told

her that he would take care of it, had her block the victim on Facebook, and had

her give the victim Sweet's cell phone number as if it was her own. Sweet and

defendant then lured the victim to his death.

      At the time, Sweet had a broken leg, so he asked defendant to deal with

the victim for him. Defendant and Sweet were friends, and defendant was

staying in Sweet's home. Sweet and defendant agreed that when the victim

arrived for the rendezvous, defendant would steal his marijuana and his car.


                                                                         A-2852-16T4
                                       3
Baith overheard defendant and Sweet planning to rob the victim, and saw

defendant leave Sweet's home with a chain wrapped around his hand. Sweet

stayed behind.

      When defendant returned to Sweet's home, he asked Baith to leave the

room. Baith overheard defendant tell Sweet that "something went wrong" and

"the guy got hurt bad." Defendant then told Baith that a man had died and he

needed a rope to tie him up. Baith found a red dog leash and gave it to defendant;

the dog leash was later identified as the strap found around the victim's legs.

      Sweet told Baith that defendant killed the victim by placing him in a "rear

naked choke hold." Baith also testified that defendant told him he had trained

in mixed martial arts and "almost went . . . professional."

      Baith and defendant attempted to dispose of the body, and burned some

of the victim's clothes. They placed the victim face down on a frozen pond in

nearby woods, and attempted unsuccessfully to break through the ice so they

could lower the body into the water. They eventually abandoned the effort and

went home.

      Baith and defendant smashed the victim's car windows to get inside.

Defendant removed the victim's identification and phone, and smashed the




                                                                          A-2852-16T4
                                        4
phone on the ground. The men failed to set fire to the vehicle, although they

splashed gasoline around the tank and tried to light it.

      Bush, Sweet's mother's paramour, was also involved in the effort to hide

the body. Bush initially drove the vehicle that contained the victim's body,

became suspicious, and asked defendant about the contents of the trunk.

Defendant told him not to worry about it. The following morning, when pressed,

defendant told Bush that everything would be alright and that he put the victim

in a choke hold and put him to sleep. When Bush continued to press him for

details, defendant explained that he met up with someone who took a swing at

him so he put the person in a choke hold. Defendant threatened Bush that if he

mentioned the incident to anyone, he would be "next."

      Eventually, police located the victim's vehicle, found his body, and

identified the men who had been witnessed near his car. Defendant was arrested

in Pennsylvania, hiding underneath a bed in his girlfriend's dormitory room.

      The authorities retrieved the text messages between Sweet and the victim,

and the Facebook pages containing communication between Sweet's girlfriend

and the victim. At the time of defendant's arrest, marijuana presumably taken

from the victim was found in the girlfriend's room.




                                                                        A-2852-16T4
                                        5
      During the trial, the defense theory was that Sweet was the killer, because

he too had substantial martial arts expertise, and lied about the extent his broken

leg disabled him.     During closing, trial counsel extensively attacked the

credibility of all the witnesses against defendant, all of whom had strong ties to

Sweet but not defendant.

      Upon receiving the presentence report, the trial judge communicated to

counsel that pursuant to statute, defendant had to be sentenced under the three

strikes law. Trial counsel objected, not because of any potential challenge to

the prior convictions, a second-degree robbery and a third-degree aggravated

assault, but on the basis that proper notice had not been given by the State prior

to sentence.    The judge found that N.J.S.A. 2C:43-7.1(b) mandated the

imposition of a life sentence, and that the month's warning he had given counsel

adequately substituted for notice from the State within two weeks of conviction.

The judge also found, in sentencing, aggravating factors three, six, and nine, and

no factors in mitigation. See N.J.S.A. 2C:44-1.

      On appeal, defendant raises the following points:

            POINT I
            IT WAS REVERSIBLE ERROR TO HAVE FAILED
            TO CHARGE AGGRAVATED AND RECKLESS
            MANSLAUGHTER, WHICH WERE CLEARLY
            INDICATED BY THE RECORD. MOREOVER, THIS
            FAILURE WAS EXACERBATED BY A FAULTY

                                                                           A-2852-16T4
                                        6
ACCOMPLICE LIABILITY CHARGE THAT
OBLITERATED THE CRUCIAL DISTINCTION
BETWEEN THE MENS REA OF THE PRINCIPAL
AND THE MENS REA OF THE ACCOMPLICE.

A.    Introduction.
B.    The Failure to Charge Clearly-Indicated Lesser-
Included Offenses.
C.    The Faulty Accomplice Liability Charge.
D.    Conclusion.

POINT II
THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY REGARDING THE STATUTORY
AFFIRMATIVE DEFENSE TO FELONY MURDER
CONSTITUTED PLAIN ERROR.

POINT III
THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY ON THE TIMING OF THE USE OF
FORCE, AND ON SELF-DEFENSE AS A DEFENSE
TO ROBBERY, CONSTITUTED PLAIN ERROR.

POINT IV
THE TRIAL WAS SO INFECTED WITH ERROR
THAT EVEN IF EACH INDIVIDUAL ERROR DOES
NOT REQUIRE REVERSAL, THE AGGREGATE OF
THE ERRORS DENIED DEFENDANT A FAIR
TRIAL.

POINT V
THE MATTER MUST BE REMANDED FOR
RESENTENCING BECAUSE THE SENTENCING
COURT IGNORED A CLEARLY SUPPORTED
MITIGATING FACTOR.




                                                        A-2852-16T4
                         7
            POINT VI
            DEFENDANT MUST BE RESENTENCED TO AN
            ORDINARY TERM OF IMPRISONMENT BECAUSE
            THE STATE'S MOTION FOR A "THREE STRIKES"
            EXTENDED TERM WAS NOT FILED WITHIN
            FOURTEEN DAYS OF THE JURY'S VERDICT AS
            REQUIRED BY RULE 3:21-4(f), AND THE
            SENTENCING COURT DID NOT FIND GOOD
            CAUSE TO EXCUSE THAT FAILURE.

            POINT VII
            THE RESTITUTION ORDER SHOULD BE
            VACATED, AND THE MATTER REMANDED TO
            THE LAW DIVISION FOR AN INQUIRY INTO
            DEFENDANT'S ABILITY TO PAY RESTITUTION.

                                       I.

      We do not address defendant's claims on appeal regarding the court's

failure to charge the jury as to lesser-included offenses, defendant's attack on

the accomplice charge, the court's failure to sua sponte instruct the jury

regarding statutory affirmative defenses to felony murder or as to the timing of

force, and self-defense as a defense to robbery. The defense theory at trial was

that defendant was not present, and that Sweet, not he, was the perpetrator.

Given this theory, it was a matter of strategy for counsel to have not requested

the lesser-included offenses be charged, not objected to the accomplice charge,

and not objected to the absence of any charges with regard to affirmative

defenses to felony murder, or on self-defense. If those instructions had been


                                                                        A-2852-16T4
                                       8
given, it would signal to the jurors that the judge, at least, did not give credence

to defendant's theory, and was therefore charging them about alternative

scenarios plausible only if defendant was present at the scene of the victim's

killing. Therefore, we will not address defendant's first four claims of error at

any length. For the sake of completeness, we very briefly discuss them.

      None of the issues raised on appeal were raised before the trial judge, thus

all are subject to plain error review. See R. 2:10-2. Under that standard, the

trial court's decisions will not be disturbed unless defendant shows plain error

that is "of such a nature as to have been clearly capable of producing an unjust

result," or if it is in the interest of justice to do so. Ibid. Where a defendant fails

to object to an instruction in the trial court, Rule 1:7-2 provides that a showing

of plain error must be made. "[P]lain error requires demonstration of '[l]egal

impropriety in the charge prejudicially affecting the substantial rights of the

defendant sufficiently grievous to justify notice by the reviewing court and to

convince the court that of itself the error possessed a clear capacity to bring

about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State

v. Jordan, 147 N.J. 409, 422 (1997)); see also State v. Chapland, 187 N.J. 275,

288-89 (2006).




                                                                               A-2852-16T4
                                          9
      In order for a court to be obligated to issue a lesser-included charge, there

must be a rational basis in the record for such charge to be given. State v.

Savage, 172 N.J. 374, 396 (2002). "It is only when the facts 'clearly indicate'

appropriateness of that charge that the duty of the trial court arises." State v.

Choice, 98 N.J. 295, 299 (1985). In this case, the court's failure to give lesser-

included instructions doubtless arose from the fact that it would have run

contrary to the defense.

      In State v. Perry, 124 N.J. 128 (1991), we affirmed the trial court's failure

to charge, sua sponte, self-defense where the unrequested charge was

incompatible with the defense strategy. Id. at 162. The defense theory required

the jury to make an all-or-nothing decision to acquit or convict. See State v.

Doss, 310 N.J. Super. 450, 455-56 (App. Div. 1998). Before the jury could have

considered self-defense, the jury would have had to conclude that defendant was

present at the victim's death—which defendant argued was not the case.

      Similarly, it was not plain error for the court to fail to charge, unrequested,

the affirmative defense to felony murder, N.J.S.A. 2C:11-3(a)(3)(a)-(d). An

affirmative defense arises under the statute if, and only if, defendant was not the

only perpetrator in the underlying crime and he:




                                                                             A-2852-16T4
                                        10
            (a) Did not commit the homicidal act or in any way
            solicit, request, command, importune, cause or aid the
            commission thereof; and

            (b) Was not armed with a deadly weapon, or any
            instrument, article or substance readily capable of
            causing death or serious physical injury and of a sort
            not ordinarily carried in public places by law-abiding
            persons; and

            (c) Had no reasonable ground to believe that any other
            participant was armed with such a weapon, instrument,
            article or substance; and

            (d) Had no reasonable ground to believe that any other
            participant intended to engage in conduct likely to
            result in death or serious physical injury.

            [Ibid.]

In order for the charge to be given, a defendant must present evidence supporting

each element. State v. Smith, 322 N.J. Super. 385, 396-97 (App. Div. 1999).

The jury was not presented with any actual testimony that would have caused

them to believe that anyone other than defendant was present at the time the

victim was killed.

      To the contrary, Baith testified that he overheard defendant and Sweet

planning to rob the victim, but saw defendant alone leave the home carrying a

chain. He further testified that when defendant returned, he asked to speak to

Sweet in private, and he overheard defendant telling Sweet that "something went


                                                                         A-2852-16T4
                                      11
wrong" and that the victim was "hurt bad." Bush also testified that defendant

said he met someone who swung at him, and that he had to put him in a choke

hold.

        Sweet testified that his plan with defendant was only to rob the victim, not

kill him. Sweet said he never saw the victim alive at any point. Therefore, the

factual premise for the affirmative defense to felony murder does not exist in

this case.

        It was similarly not plain error for the court to have failed to sua sponte

charge the jury on self-defense as a defense to robbery.             This argument,

independent of the defense theory that defendant had nothing to do with the

killing itself, has no basis in the record. It is so lacking in merit as to not warrant

discussion in a written opinion. R. 2:11-3(e)(2).

        Nor was it plain error for the court to have omitted charging the jury on

the timing of use of force relative to the robbery. Such a charge would be

relevant only if there was some basis in the record for the conclusion that

defendant stole the victim's marijuana after he was injured. When defendant left

Sweet's home, however, it was with the intent to rob the victim of his drugs and

car. There is no proof to the contrary. This argument also is so lacking in merit

as to not warrant discussion in a written opinion. Ibid.


                                                                               A-2852-16T4
                                         12
      Since we see no error in the charges, there are no cumulative errors which

warrant reversal of defendant's conviction. Defendant received a fair trial.

                                         II.

      Defendant also contends the trial court erred when it failed to find

mitigating factor two. He claims this mitigating factor "was . . . supported by

the evidence adduced at trial, [and] the matter must be remanded for

resentencing."

      Appellate review of a trial court's sentencing decision is limited . State v.

Miller, 205 N.J. 109, 127 (2011). We "assess the aggravating and mitigating

factors to determine whether they 'were based upon competent credible evidence

in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v.

Roth, 95 N.J. 334, 364 (1984)). We will "modify sentences when the application

of the facts to the law is such a clear error of judgment that it shocks the judicial

conscience." Roth, 95 N.J. at 364.

      Our Supreme Court has stated:

             [A]ppellate review of a sentencing decision calls for us
             to determine, first, whether the correct sentencing
             guidelines, or in this case, presumptions, have been
             followed; second, whether there is substantial evidence
             in the record to support the findings of fact upon which
             the sentencing court based the application of those
             guidelines; and third, whether in applying those
             guidelines to the relevant facts the trial court clearly

                                                                             A-2852-16T4
                                        13
            erred by reaching a conclusion that could not have
            reasonably been made upon a weighing of the relevant
            factors.

            [Id. at 365-66.]

"On review, an appellate court should not substitute its judgment for that of the

trial court." State v. Burton, 309 N.J. Super. 280, 290 (App. Div. 1998).

      The trial court said:

                   The [c]ourt notes as aggravating factors the
            following: [a]ggravating factor number three, the risk
            that the defendant would be involved in a reoccurrence
            of a criminal offense as evidenced by six adult arrests.

                  The [c]ourt notes aggravating factor number six,
            a criminal record that includes two municipal court
            convictions of minimal consequence and three upper
            court convictions. The two previously referred to by
            the [c]ourt are robbery and aggravated assault and the
            present conviction.

                 And finally, it notes the blatant, obvious
            aggravating factor number nine, the reason to deter the
            defendant.

                  The [c]ourt finds not a single mitigating factor.
            And the [c]ourt is satisfied that the aggravating factors
            clearly and substantially outweigh the mitigating
            factors.

      Prior to sentencing, defendant had argued mitigating factor two should

apply because the felony murder conviction itself demonstrated that he lacked

the intention to cause fatal harm to the victim. N.J.S.A. 2C:44-1(b)(2). He

                                                                         A-2852-16T4
                                      14
argued his statement to Sweet after he returned to the home, that "something

went wrong," established that he had no intention to fatally harm the victim.

      However, the record suggests otherwise. Defendant was seen wearing

gloves and wrapping a chain around his hand before meeting the victim.

Nothing in the record supports mitigating factor two.            The trial court

appropriately analyzed and applied the aggravating and mitigating factors ,

which were supported by the evidence presented at trial.

                                       III.

      It is undisputed that Rule 3:21-4(f) provides that notices seeking the

imposition of an extended-term sentence "shall be filed with the court and served

upon the defendant by the prosecutor within [fourteen] days of . . . return of the

verdict." Defendant was put on notice more than one month prior to sentencing

that the court was considering the three strikes sentence.

      The judge explained at sentencing that he became aware that the

mandatory statute was applicable only when he looked at the presentence report

and saw defendant's prior conviction history. It was for that reason that he

advised everyone, in ample time before the sentence, of the relevance of the

extended-term statute, assuming the State provided the appropriate proof of the




                                                                          A-2852-16T4
                                       15
prior convictions for second-degree robbery and third-degree aggravated

assault.

      The statute states that a person shall be sentenced to an extended term of

imprisonment pursuant to N.J.S.A. 2C:43-7 if convicted of a violent crime on a

third occasion. N.J.S.A. 2C:43-7.1(b). That is precisely what occurred in this

case. The judge imposed life imprisonment upon defendant as a third-time

offender. Subsection (b) requires an extended term for a person who has been

convicted of felony murder, and has previously been convicted of robbery and

aggravated assault as enumerated in the relevant statutory sections.           The

provision is mandatory.      Defendant had ample time in which to prepare

opposition. Thus, we find no error on the part of the court.

                                       IV.

      Finally, the judge imposed a total of $9341 in restitution upon defendant—

$4341 to Karen Bauer, the victim's mother, and $5000 to the Victim's Crime

Compensation Fund. As to the amount of restitution, the State agrees a hearing

is appropriate. Since restitution to the Victim's Crime Compensation Fund is

mandatory, no restitution hearing is appropriate as to that. N.J.S.A. 2C:43-

3.1(a)(3); N.J.S.A. 2C:46-2(a). With regard to the payment of $4341 to the

victim's mother, the court is directed to conduct a restitution hearing.


                                                                           A-2852-16T4
                                       16
      Affirmed, except that a restitution hearing shall be conducted as to the

victim's mother.




                                                                      A-2852-16T4
                                     17
