SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3228- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. ANDRE HARRIS, Defendant-Appellant.

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Argued April 16, 2024

– Decided May 20, 202 4 Before Judges Mayer, Whipple and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 16

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- 12 -1998. Colin Sheehan argued the cause for appellant (Jenni fer Nicole Sellitti, Public Defender, attorney; Taylor L. Napolitano, Assistant Deputy Public Defender, of counsel and on the brief). Melinda A. Harrigan argued the cause for respondent (Raymond S. Santiago, Monmouth County Prosecutor, attorney; Melinda A. Harrigan, Assistant Prosecutor , of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3228

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PER CURIAM Defendant Andre Harris appeals from his June 10, 2 0 22 judgment of conviction for attempted murder , conspiracy to commit murder, weapons offenses, and desecration of human remains after en tering a guilty plea

. Defendant focus es his arguments on the April 16, 2019 order denying his motion to suppress statements he made to the police. He als o appeals from the sentence imposed. We affirm the conviction but remand for r esentencing

. We incorporate the facts from our opinion in a com panion case, State v. Sweeney, No. A-3186-21 (App. Div. May 20 , 2024), issued the same date as this opinion . In Sweeney, a jury convicted defendant Jennifer Sweeney of murder and other offenses in connection with the shooting o f Tyrita Julius in November 2015 and Julius's murder in March 2016. In brief, Sweeney contacted defendant and demanded he kill Julius. Sweeney threatened to contact defendant's family if he refused to k ill Julius . In November 2015, Sweeney gave defendant a gun to shoo t and kill Julius. Although defendant succeeded in shooting Julius several time s, he did not kill her.3 A- 3228

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In March 2016, Julius disappeared. As part of the investigation into Julius's disappearance, the police obtained defenda nt and Sweeney's cell phone and E-ZPass records. In June 2016, unrelated to the murder of Julius, a grand jury indicted defendants on several drug related charges (drug ca se). On August 16, 2016, the police arrested defendant on a warrant for a mo tor vehicle violation. At the police station, defendant gave a recorded statement to t he police. At the start of the interview, the police told defendant he was und er arrest based on the motor vehicle warrant. The police gave defendant the Mir anda 1 warning and waiver form. Defendant acknowledged his rights by responding "ye s" when asked by the officers if he understood his rights and agreed to waive his rights by provid ing a voluntary statement. Defendant then initialed and signed the Miranda warning and waiver form. During his recorded statement , defendant consented to a search of his home. While still being interviewed at the police station, other police officers executed a search warrant of defendant's home and d iscovered Julius's bod y buried in a shallow grave in defendant's backya rd

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1 Miranda v. Arizona , 384 U.S. 436 (1966).4 A- 3228

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In December 2016, a grand jury indicted defendant o n charges related to Julius's murder and other offenses (murder case). The charges in the murder case included the following: first-degree attempte d murder , N.J.S.A. 2C:5- 1 and 2C:11-3 (counts one and two); first-degree cons piracy to commit murder, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:11-3(a) (coun t three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 a nd N.J.S.A. 2C:39-5(b) (count four) ; sec ond -degree possession of a weapon for an unlawful purp ose, N.J.S.A. 2C:39-4(a) (count five); first-degree purp oseful or knowing murder, N.J.S.A. 2C:11-3(a)(1) and/or (a)(2) (count six); t hird-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count seven); seconddegree disturbing or desecrating human remains, N.J .S.A. 2C:22-1(a)(1) and/or (a)(2) (count eight); and fourth-degree tampering w ith physical evidence, N.J.S.A. 2C:28-6(1) (count nine). Prior to trial, defendant moved to suppress his sta tement to the police in the murder case. The judge conducted several days of testimonial hearings on defendant's motion. 2 In a written opinion, the judge denied defendant's April 16, 2019 motion

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2 The hearing included testimony related to Sweeney's motion to suppress her statements to the police.5 A- 3228

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On May 30, 2019, defendant pleaded guilty to certai n charges under both indictments pursuant to a plea agreement and a coop eration agreement. Under the cooperation agreement, defendant agreed to testify truthfully against Sweeney at the murder trial

. In accordance with a negotiated plea in the murder case, defendant agreed to plead guilty to attempted murder, conspiracy to commit murder, possession of a weapon for an unlawful purpose, and disturbing or desecrating human remains. Defendant also agreed to plead guilty to obtain ing controlled dangerous substances (CDS) by fraud in the drug cas e. In exchange for his guilty plea, the prosecutor agr eed to dismiss the remaining charges in each indictment and recommend an aggregate sixteen-year prison sentence, subject to the No Early Release Ac t (NERA), N.J.S.A. 2C:43-7.2(a), with the sentences to run concurrent ly

. Also on May 30, 2019, defendant signed the plea for m . I n response to Question 4.d., defendant acknowledged he was not wa iving his right to appeal the denial of a motion to suppress physical evidenc e under Rule 3:5 -7(d), or the denial of acceptance into a pretrial intervention p rogram under Rule 3:28. I n response to Question 4.e., defendant circled, "Yes, " indicating he "underst[ood] that by pleading guilty [he was] waiving [his] righ t to appeal the denial of all6 A- 3228

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other pretrial motions." In the blank space for listing any exceptions to waivi ng the right to appeal other pretrial motions, "N/A" w as handwritten. Although defendant could have listed exceptions to his waiv ing the right to appeal a ny other pretrial motions in this section of the plea form, including the pretrial suppression motion, he did not do so. In responding to Question Thirteen , defendant expressly "reserved [ the ] right to argue for [a] lesser sentence. " At the plea hearing, defendant testified he reviewe d and discussed the terms of the plea agreement and cooperation agreeme nt with his attorney. The judge also reviewed the plea agreement and cooperat ion agreement with defendant. After hearing defendant's testimony, th e judge accepted defendant's guilty plea, concluding defendant knowingly and voluntari ly waived his rights in entering into the plea. Defendant then testified against Sweeney at trial in the murder case. The jury ultimately convicted Sweeney of murder and oth er offenses. On May 6, 2022, defendant appeared for sentencing i n accordance with his plea agreement. Defendant's attorney requested the judge sentence defendant to a lesser term than stated in the plea agreement. Specifically, counsel asked that defendant be sentenced in accord ance with a second-degree offense and receive a term of seven years subject to NERA.7 A- 3228

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Defense counsel also asked the judge to find the fo llowing mitigating factors: mitigating factor three, N.J.S.A. 2C:44-1 (b)(3) , defendant acted under strong provocation; mitigating factor four, N.J.S.A . 2C:44-1(b)(4), substantial grounds tending to excuse or justify defendant's co nduct; mitigating factor six, N.J.S.A. 2C:44-1(b)(6), defendant will compensate t he victim or will participate
in a program of community service; mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), defendant has no history of delinque ncy or criminal activity or has led a law-abiding life for a substantial period of time; mitigating factor eight, N.J.S.A. 2C:44-1(b)(8) , defendant's conduct was the result of circumstances unlikely to recur; mitigating factor nine, N.J.S.A. 2C:44-1(b)(9) , defendant's character and attitude indicate he is unlikely to c ommit another offense; and mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12) , defendant's willingness to cooperate with law enforcement authorities. The State asked the judge to impose defendant's sen tence in accordance with the plea agreement. Regarding the mitigating factors, the State agreed mitigating factor twelve applied. Regarding the ag gravating factors, the State requested the following: aggravating factor one, N .J.S.A. 2C:44-1(a)(1) , the nature and circumstances of the offense and the rol e of the actor in committing the offense; aggravating factor two, N.J.S.A. 2C:44 -1(a)(2) , the gravity and8 A- 3228

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seriousness of harm inflicted, including the victim 's vulnerability or inability to resist; aggravating factor three, N.J.S.A. 2C:44-1( a)(3) , the risk defendant will commit another offense; and aggravating factor nine , N.J.S.A. 2C:44-1(a)(9) , the need for deterrence. As part of the sentencing hearing, the judge consid ered the presentence report, as well as counsels' arguments and written submissions. After reviewing the matter, the judge applied mitigating factor nin e based upon defendant's numerous letters of support but afforded little wei ght to this factor based on his findings in applying the aggravating factors. The judge also applied mitigating factor twelve based on defendant's "level of cooper ation." The judge rejected the other mitigating factors requested by defendant and explained his reasons for declining to apply those factors. The judge then considered the aggravating factors. As requested by the State, the judge applied aggravating factors one, t wo, three, and nine. In applying aggravating factors one and two, the judge noted Sweeney "enlisted " defendant to kill Julius and defendant fired a handgun "at point blank range" into Julius's car knowing " th ere [were two people] sitting in that vehicle." Moreover, the judge found defendant not only "allow [ed] the body of [] Julius to be buried in his backyard, [ but ] he obliged defendant Sweeney by digging the9 A- 3228

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hole himself" and "[p]lacing [] Juliu s [' s] lifeless body into it and covering it

over. " The judge found the circumstances were "heinous in the extreme." The judge applied aggravating factor two "because there [wa s] no question that both of these innocent victims were seriously hurt." Th e judge further explained defendant "surely knew or should have known that, b oth of [the victims] were vulnerable, particularly vulnerable, sitting helple ssly in a vehicle. They were not capable of exercising normal physical or mental power of resistance at that point." In applying aggravating factor three, the judge exp lained that after defendant shot Julius and her daughter in November 2015, a mere four months later, defendant "committed wholly new acts of crim inal depravity, by burying [] Julius in his backyard, and thereby hiding evidence of Sweeney's murder on his property." Based on "[t]he sequence of events alone," the judg e applied aggravating factor three. Additionally, the judge stated defendant's "criminal history further underscore[d] the risk of future of fenses." The judge applied aggravating factor nine for the r easons previously expressed in support of the other aggravating facto rs. Based upon his findings applying the aggravating and mitigating fa ctors , the judge sentenced defendant in accordance with th e plea agreement. He10 A- 3228

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sentenced defendant as follows: a sixteen-year term, subject to NERA, on counts one, two, and three in the murder case; a ten-year term with five years of parole ineligibility on count five in the murder ca se; a concurrent ten-year term on count eight in the murder case; and a concurrent three-year term on count one
in the drug case. On appeal, defendant raises the following argument s: POINT I THE TRIAL COURT ERRED IN DENYING SUPPRESSION OF [DEFENDANT'S] STATEMENT BECAUSE [DEFENDANT'S] WAIVER OF THE PRIVILEGE OF SELF-INCRIMINATION WAS NOT KNOWING AND VOLUNTARY GIVEN HIS CONFUSION OVER HIS TRUE STATUS EXACERBATED BY THE EXISTENCE OF THE TRAFFIC WARRANT AND CDS CASE, AND THE POLICE'S COERCIVE INTERROGATION TACTICS. POINT II [DEFENDANT] IS ENTITLED TO RESENTENCING GIVEN THAT THE COURT IGNORED COMPETENT AND CREDIBLE EVIDENCE THAT HE ACTED UNDER DURESS, IMPROPERLY DOUBLE-COUNTED THE OFFENSES IN FINDING THE AGGRAVATING FACTORS, AND OTHERWISE FAILED TO GIVE ANY OF THE FACTORS THE APPROPRIATE WEIGHT TO ARRIVE AT AN EXCESSIVE 16-YEAR TERM.11 A- 3228

- 21 I. Defendant contends he did not waive his appeal argument in Point I by entering into the plea agreement. He argues the judge never asked if he understood the waiver of the right to preserve the filing of an appeal from the denial of his motion to suppress his statement to t he police. Having reviewed the record, we are satisfied defendant waived his r ight to appeal this issue. "Generally, a defendant who pleads guilty is prohib ited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea." State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)). Rule 3:9 -3(f) addresses "conditional pleas" and provides: With the approval of the court and the consent of t he prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of a ny specified pretrial motion. If the defendant prevai ls on appeal, the defendant shall be afforded the opportu nity to withdraw his or her plea. Nothing in this rule shall be construed as limiting the right of appeal provid ed for in [R ule ] 3:5 -7(d). [3]

3 Under Rule 3:5 -7(d), a defendant who enters into a guilty plea re tains the automatic right to appeal from the denial of any mo tions to suppress physical evidence.12 A- 3228

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The automatic right to appeal under Rule 3: 5-7(d) is limited to search and seizure claims and excludes claims alleging a viola tion of the right against selfincrimination. See Knight , 183 N.J. at 471. A defendant's entering a plea without the conditional reservation of the right to appellate r eview of issues other than the validity of a search and seizure and denial of admission to a pretrial intervention program. Ibid. Exceptions to the limitations under Rule 3:9 -3(f) require a defendant to demonstrate compelling circumstances. State v. Benjamin , 442 N.J. Super. 258, 263-64 (App. Div. 2015) , aff'd on other grounds , 228 N.J. 358 (2017). Here, in pleading guilty, defendant failed t o preserve the right to appeal from the denial of his motion to suppress his statem ent to the police. Defendant unequivocally affirmed his understanding that by pl eading guilty he waived his right to appeal the denial of all pretrial motions with the exception of a motion under R ule 3:5 -7(d), related suppression of physical evidence, an d R ule 3:28, the denial of entry into a pretrial intervention pr ogram. Therefore, defendant is precluded from challenging the denial of his motion to suppress his statement to the police

. Moreover, the record is devoid of any evidence ref lecting defendant's alleged confusion as to the nature of his plea or a ny compelling circumstances13 A- 3228

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warranting an exception to Rule 3:9 -3(f). To the contrary, the record reflects defendant, with the assistance of counsel, carefull y reviewed the plea form and cooperation agreement such that defendant understoo d the consequences of his plea, including the waiver of his right to challeng e the denial of his motion to
suppress his statement to the police. If defendant sought to preserve his right to appea l the denial of his motion to suppress the statement to the police, defendant knew that r ight could be included in the plea agreement. Indeed, defendant preserved the right to argue for a lesser sentence as part of his plea agreement. Thus, on this record, we reject defendant's argument that he preserved the righ t to appeal from the denial of his motion to suppress his statement to the poli ce. II. We next consider defendant's arguments seeking a r emand for resentencing. Defendant asserts the judge impermis sibly double-counted certain components in applying the aggravating factors. He further contends the judge failed to properly weigh the aggravating and mitiga ti ng factors. Additionally, defendant claims the sentence imposed was excessive. We review a sentencing court's imposition of a sen tence for abuse of discretion. State v. Miller, 2 37 N.J. 15, 28 ( 2019 ). "Appellate review of a14 A- 3228

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criminal sentence is limited; a reviewing court dec ides whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979) ). However, our deferential standard of review applie s "only if the trial judge follows the [Criminal] Code and the basic precepts that channel sentencing discretion." State v. Trinidad, 241 N.J. 425, 453 (2020) (quoting State v. Case , 220 N.J. 49, 65 (2014)). Where the sentencing judg e followed the Criminal Code "and the basic precepts that channel sentencing discretion," we will affirm provided the sentence does not "shock the judicial conscience." Case, 220 N.J. at 65. "On the other hand, if the trial court fails to identi fy relevant aggravating and mitigating factors, or merely enumerates them, or foregoes a qualitative analysis, or provides little 'insight into the sent encing decision,' then the deferential standard will not apply." Ibid. ; see State v. Kruse, 105 N.J. 354, 363 (1987). Regarding the balancing of aggravating and mitigati ng factors, it is
in sufficient to merely count "whether one set of fact ors outnumbers the other." Case, 220 N.J. at 65. "R ather, the court must qualitatively assess the rele vant aggravating and mitigating factors, assigning each factor its appropriate weight." Ibid.15 A- 3228

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Here, at the sentencing hearing, the judge omitted the assignment of weight to each aggravating and mitigating factor. No r did the judge state on the record at the sentencing hearing that the aggravati ng factors outweighed the mitigating factors. Absent the judge assigning wei ght to each aggravating and mitigating factor, we are constrained to remand for resentencing. A defendant must be sentenced "anew" where resenten cing is ordered unless the remand is for correction of a technical error, or the remand order is limited in scope. State v. Robinson, 217 N.J. 594, 610- 11 (2014); State v. Randolph, 210 N.J. 330, 350-51 (2012). Such a rese ntencing would entail "a new analysis of the aggravating and mitigating fact ors" applicable to defendant "as he appears on the day of resentencing." Randol ph, 210 N.J. at 354. On remand, counsel may present arguments regarding the applicable aggravating and mitigating factors. The judge should provide a detailed explanation of the sentencing findings, assigning w eight to each applicable aggravating and mitigating factor and the n balancing the factors. Affirmed as to the conviction. The matter is reman ded for resentencing consistent with this opinion. We do not retain jur isdiction.