Post Conviction Relief Denied
Post 5084
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A criminal defendant appealed the denial of his post-conviction relief (PCR) petition and the request to disqualify the trial judge. In State Of New Jersey v. Robert D. Keith, a/k/a David R. Keith, No. A-1042-23, Superior Court of New Jersey, Appellate Division (May 21, 2025) the Appellate Division denied Keith’s request for relief.
Background of the Case
Robert D. Keith, serving as a bookkeeper for RupCoe Heating and Plumbing, was indicted on multiple financial offenses, including money laundering and insurance fraud. He pleaded guilty to a first-degree charge of financial facilitation and a third-degree charge of insurance fraud, resulting in a recommended ten-year prison sentence for money laundering and four years for insurance fraud, to be served consecutively. The remaining charges were dismissed as part of the plea agreement.
Sentencing Details
During sentencing, the trial judge considered the victim’s emotional impact statement and noted the defendant’s extensive criminal history, which included multiple convictions for similar offenses. The judge identified several aggravating factors such as the defendant’s persistent criminal behavior and the need for deterrence, while only one mitigating factor was acknowledged: the defendant’s promise to pay restitution. Ultimately, the judge sentenced Keith according to the plea agreement without analyzing specific statutory requirements for consecutive sentencing.
Appeal and Remand
The defendant appealed the sentence, raising issues regarding the consecutive nature of the sentences imposed. The appellate court suggested a remand for the trial court to clarify the reasons for consecutive sentencing and to ensure the victim impact statement was appropriately considered. On remand, the trial judge provided further justification for the consecutive sentences but did not conduct a new sentencing hearing, which the defendant argued was necessary.
Post-Conviction Relief
Following the remand, Keith filed for PCR, claiming ineffective assistance of counsel and procedural errors by the trial judge. The trial judge dismissed the PCR application, stating that the claims could have been raised on direct appeal and were thus procedurally barred. The judge also found that the victim impact statement was not overly prejudicial and did not divert attention from the sentencing factors.
Appeal of PCR Decision
On appeal, Keith contended that his counsel was ineffective for not requesting a full resentencing hearing and failing to address the victim impact statement’s content adequately. However, the appellate court upheld the trial judge’s decision, stating that the limited remand did not necessitate a complete resentencing and that the trial judge had followed the appellate court’s directives.
Conclusion
Ultimately, the appellate court affirmed the trial court’s decisions, concluding that the sentencing was appropriate and that the claims raised by Keith did not warrant relief. The court emphasized that the trial judge had exercised discretion within the bounds of the law and that the procedural claims regarding ineffective assistance of counsel were not substantiated.
It is axiomatic that sentencing decisions are discretionary. Therefore, the appellate court reviews a sentence for an abuse of discretion and defers to the sentencing court’s factual findings and should not “second-guess” them. To facilitate meaningful appellate review, trial judges must explain how they arrived at a particular sentence. Trial judges have discretion to decide if sentences should be served concurrently or consecutively.
In his written opinion following his oral decision, the trial judge ultimately concluded that the negotiated plea and sentence was fair. In light of the nature of the offenses, the elements necessary to establish each offense, and supported by the factual basis provided for each offense, the Appellate Division agreed with the trial court that the crimes were separate and apart from one another, against separate victims, committed on separate dates, and in separate fashion.
Combining these observations with the trial court’s detailed analysis of the pertinent aggravating and mitigating factors and considering the specific facts of this case, the appellate court could discern no error in the exercise of the trial court’s discretion in concluding that the consecutive service of the sentences was proper and was fair.
Since Defendant did not establish a reasonable probability that, but for counsel’s purported error the result of the proceeding would have been different.
ZALMA OPINION
New Jersey allows a person, after being convicted of a crime or crimes, and sentenced to seek post conviction relief from the Appellate Division by claiming inadequacy of counsel or other grounds allowed by the statute. Keith’s attempt to reduce his sentence and appealed the finding of the trial court refusing PCR and although he was a successful fraudster for a while his attempts failed at the trial court and the Appellate Division.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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When I finished my three year enlistment in the US Army as a Special Agent of US Army Intelligence in 1967, I sought employment where I could use the investigative skills I learned in the Army. After some searching I was hired as a claims trainee by the Fireman’s Fund American Insurance Company. For five years, while attending law school at night while working full time as an insurance adjuster I became familiar with every aspect of the commercial insurance industry.
On January 2, 1972 I was admitted to the California Bar. I practiced law, specializing in insurance claims, insurance coverage and defense of claims against people insured and defense of insurance companies sued for breach of contract and breach of the implied covenant of good faith and fair dealing. After 45 years as an active lawyer, I asked that my license to practice law be declared inactive ...
