STATE OF NEW JERSEY VS. WALEK P. DUNLAP (12-05-0858, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4526-17T1 STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, February 6, 2020 APPELLATE DIVISION v. WALEK P. DUNLAP, a/k/a MONTANA, Defendant-Appellant. _________________________ Submitted November 18, 2019 – Decided February 6, 2020 Before Judges Messano, Vernoia and Susswein. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12- 05-0858. Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Mareka Amelia Watson, Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent (Lauren Bonfiglio, Deputy Attorney General, of counsel and on the brief). The opinion of the court was delivered by SUSSWEIN, J.S.C. (temporarily assigned). This case probes the boundaries of the United States Supreme Court’s landmark Sixth Amendment decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant, Walek P. Dunlap, appeals from a sentence of ten years in prison for a second-degree robbery conviction imposed after violating special probation (Drug Court), N.J.S.A. 2C:35-14. Defendant argues the revocation and resentencing provisions of the special probation statute, N.J.S.A. 2C:35 – 14(f), permit a judge to engage in prohibited judicial fact finding. He specifically contends the imposition of a ten-year prison sentence after having already served four years on special probation is an unconstitutional extension of the statutory ten-year maximum sentence for a second-degree conviction prescribed by N.J.S.A. 2C:43-6(a)(2), contrary to Apprendi, 530 U.S. at 490. In addition to his novel constitutional arguments, defendant contends the resentencing court did not follow sentencing guidelines and imposed an excessive sentence that shocks the judicial conscience. We reject defendant’s contentions and affirm his sentence. I. We begin by briefly summarizing the circumstances of the robbery. The victim drove to a gas station where he purchased marijuana from defendant for $20. The encounter was recorded on surveillance video. Defendant and the victim met again at the gas station about twenty minutes after the first A-4526-17T1 2 transaction. This time, defendant and a second individual entered the victim’s car. Defendant sat in the front passenger seat while the other person occupied the rear seat. The two passengers directed the victim to drive to an apartment complex. Once parked, the rear-seat passenger grabbed the victim around the neck, put a gun to his head, and told him to close his eyes, warning, “If you move, I’ll kill you.” Defendant took the victim’s jacket, wallet, hat, money, and car keys. The robbers then exited the vehicle and fled. A Middlesex County Grand Jury returned a four-count indictment charging defendant with (1) first-degree robbery contrary, to N.J.S.A. 2C:15-1; (2) second-degree conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:5-2; (3) second-degree unlawful possession of a firearm, contrary to N.J.S.A. 2C:39-5(b); and (4) second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a). Defendant entered a conditional guilty plea to an amended count of second-degree robbery. Defendant admitted he took the victim’s possessions by threat of …Original document