                                NOT FOR PUBLICATION WITHOUT THE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-2197-17T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

WAYNE C. MONK, a/k/a
MARRANO MONK,

     Defendant-Appellant.
____________________________

                   Submitted November 28, 2018 - Decided July 9, 2019

                   Before Judges Fuentes and Accurso.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Indictment No. 14-06-0868.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Al Glimis, Designated Counsel, on the
                   brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Carol M. Henderson, Assistant Attorney
                   General, of counsel and on the brief).

                   Appellant filed a pro se supplemental brief.
PER CURIAM

      Defendant pled guilty pursuant to a negotiated agreement with the State

to second degree distribution of oxycodone. In exchange, the State agreed to

dismiss the remaining counts in the indictment and recommend that defendant

be sentenced to a term of six years, subject to a discretionary three-year period

of parole ineligibility. The court sentenced defendant accordingly.

      Defendant appealed this sentence pursuant to the summary process

codified in Rule 2:9-11. After considering defendant's arguments, we remanded

the matter for the court to resentence defendant without consideration of

aggravating factor eleven, N.J.S.A. 2C:44-1(a)(11). See State v. Dalziel, 182

N.J. 494, 502 (2005). We also directed the sentencing judge to perform the

analysis required under N.J.S.A. 2C:43-6(b) to determine whether the

imposition of a discretionary three-year period of parole ineligibility is

warranted. State v. Wayne Monk, No. A-2140-16 (App. Div. May 3, 2017).

      On remand, a different judge followed our instructions and ultimately

resentenced defendant to the same six-year term of imprisonment, subject to a

discretionary three-year period of parole ineligibility.




                                                                        A-2197-17T4
                                        2
      Defendant again appealed under the process in Rule 2:9-11, but at his

request, the appeal was transferred to the plenary calendar. In this appeal,

defendant raises the following arguments:

            POINT I

            THE IMPOSITION OF A DISCRETIONARY
            PERIOD OF PAROLE INELIGIBILITY IS
            UNCONSTITUTIONAL PURSUANT TO ALLEYNE
            AND MUST BE STRICKEN BY THIS COURT. THE
            NEW JERSEY SUPREME COURT RECENTLY
            GRANTED     CERTIFICATION    TO     DECIDE
            WHETHER THE TYPE OF PAROLE DISQUALIFIER
            IMPOSED IN THIS CASE IS UNCONSTITUTONAL
            PURSUANT TO ALLEYNE. (Not raised below)

            A. Alleyne's Edict That Any Fact That Increases The
            Mandatory Minimum Is An "Element" That Must Be
            Submitted To The Jury Apples [sic] To Periods Of
            Parole Ineligibility.

            B. Mr. Monk's Sentence.

            POINT II

            THE SENTENCING COURT ERRED IN VACATING
            JUDGE STEELE'S FINDINGS THAT MITIGATING
            FACTORS TWO AND THREE WERE APPLICABLE.

      Defendant also raises the following arguments in his pro se

supplemental brief.




                                                                    A-2197-17T4
                                      3
            POINT I

            TRIAL COUNSEL DEPRIVED MONK OF HIS
            SIXTH AMENDMENT RIGHT TO EFFECTIVE
            ASSISTANCE OF COUNSEL WHEN THEY BOTH
            FAILED TO ARGUE MITIGATING FACTORS
            SUPPORTED BY THE RECORD. (Not raised below)


            POINT II

            TRIAL COUNSEL DEPRIVED MONK OF HIS
            SIXTH AMENDMENT RIGHT TO EFFECTIVE
            ASSISTANCE OF COUNSEL WHEN HE FAILED TO
            MAKE APPLICATION [sic] FOR DRUG COURT.

      Defendant argues that the sentence imposed by the trial court under

N.J.S.A. 2C:43-6(b) violated his Sixth Amendment rights as construed by the

United States Supreme Court in Alleyne v. United States, 570 U.S. 99 (2013)

and Apprendi v. New Jersey, 530 U.S. 466 (2000). Our Supreme Court recently

addressed and settled this issue in State v. Kiriakakis, 235 N.J. 420 (2018).

Writing for the Court, Justice Albin explained:

            Alleyne permits judges, in the exercise of their
            discretion, to take into consideration various factors
            relating both to the offense and offender "in imposing a
            judgment within the range prescribed by statute." 570
            U.S. at 116 (emphasis omitted) (quoting Apprendi, 530
            U.S. at 481). The aggravating factors found by the
            court here were not the functional equivalent of the
            elements of an offense. This case does not involve a
            judicial finding of an aggravating factor that required
            the imposition of a mandatory-minimum sentence, a

                                                                       A-2197-17T4
                                       4
            scenario that would violate the right to a jury trial. See
            State v. Grate, 220 N.J. 317, 334-35 (2015).

            [Id. at 425.]

      However, we agree with defendant that the resentencing judge erred when

she refused to find mitigating factors N.J.S.A. 2C:44-1(b)(2) and (3), which the

original sentencing judge found applied in this case. Our order entered pursuant

to Rule 2:9-11 limited the scope of the court's authority on remand to

determining the appropriate sentence without consideration to aggravator factor

N.J.S.A. 2C:44-1(a)(11). In this context, the resentencing judge did not have

the authority to reassess the applicability of the mitigating factors found by the

previous judge. State v. Randolph, 210 N.J. 330, 351-54 (2012). We thus again

remand this matter for the sentencing judge to resentence defendant after

considering mitigating factors N.J.S.A. 2C:44-1(b)(2) and (3).

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-2197-17T4
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