State v. Pennington

HUMPHREYS, J.A.D.,

dissenting.

The defendant was convicted by a jury of numerous crimes arising out of four separate criminal episodes. The crimes included two kidnappings, two armed robberies and four burglaries. These crimes and the defendant’s horrific criminal record mark him as a violent and dangerous career criminal. His incorrigibility is demonstrated by his statement to the sentencing judge that “[rjight now, I couldn’t say that I could walk out of these doors and not commit another crime.” His incorrigibility is also shown by his arrest on two occasions while on bail waiting trial for the crimes in this case. One of these arrests was for aggravated assault and armed robbery. The probation department recommended maximum incarceration for the protection of society.

The judge imposed an aggregate sentence of life imprisonment plus twenty years with a thirty-five year period of parole ineligibility. My colleagues conclude that the sentence shocks the judicial *222conscience and is manifestly excessive. I disagree. The sentence is within the limits established by law and is necessary in order to protect the public. What is shocking is that the criminal justice system had not put an end to this desperado’s criminal career long before now.

Historically, the severity of criminal sentences could not be reviewed on appeal. See State v. Roth, 95 N.J. 334, 341, 471 A.2d 370 (1984). In 1961, we concluded that sentences which were manifestly excessive could be revised on appeal even if within authorized statutory limits. See State v. Johnson, 67 N.J.Super. 414, 432, 170 A.2d 830 (App.Div.1961); see also State v. Kunz, 55 N.J. 128, 141, 259 A.2d 895 (1969).

However, this appellate review is quite limited. The “reserve” of judicial power to modify sentences will be exercised infrequently and only when the sentencing judge’s “application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience.” State v. Roth, supra, 95 N.J. at 364, 471 A.2d 370.

Further, an appellate court must “avoid the substitution of appellate judgment for trial court judgment. What we seek by our review is not a difference in judgment, but only a judgment that reasonable people may not reasonably make on the basis of the evidence presented----” Id at 365, 471 A.2d 370.

Thus, “[t]he test ... is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.” State v. Ghertler, 114 N.J. 383, 388, 555 A.2d 553 (1989). Consequently, “[w]hen conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by us today, they need fear no second-guessing.” State v. Roth, supra, 95 N.J. at 365,471 A.2d 370.

Furthermore, in formulating a sentence, the New Jersey Code of Criminal Justice “requires an inexorable focus upon the offense” and not the offender. Id at 367, 471 A.2d 370; accord *223State v. Jabbour, 118 N.J. 1, 9, 570 A.2d 391 (1990). The sentence “must reflect primarily the severity of [the] crime.” State v. Hodge, 95 N.J. 369, 377, 471 A.2d 389 (1984). “The severity of the crime is now the single most important factor in the sentencing process.” Id. at 378-79, 471 A.2d 389.

The severity of the crime here is apparent. The defendant’s crimes were breaking into hotel rooms and robbing the occupants. In one foray, he subdued two hotel guests at the point of a knife. He demanded their money and valuables. He forced his victims to lie on the floor and tied their hands behind their heads. He put packaging tape over their bound hands and taped their feet. He then prowled the room looking in the drawers, closets and suitcases. The victims were terrified. At one point, the defendant said that the victims were making him “very, very nervous” because he was having difficulty finding their money. After that statement, the victims, tied and helpless, became even more terrified.

The defendant finally found the money. He told the victims that if they did not want to be hurt, they should not make any sudden moves or telephone calls. He then tore the telephone from the wall and left. The victims were unable to free themselves until some twenty minutes had passed.

The jury convicted the defendant of first degree kidnapping of these two hotel guests as well as other crimes. The Legislature has determined that first-degree kidnapping is a “particularly serious crime.” State v. Megargel, 143 N.J. 484, 503, 673 A.2d 259 (1996). “It is evident that the Legislature intended harsh treatment for kidnappers.” State v. Brent, 137 N.J. 107, 120, 644 A.2d 583 (1994). The sentence imposed here is consistent with that legislative intention.

Moreover, the defendant’s criminal history warrants a most severe sentence. His record is one of constant crime. When released from prison, he almost immediately commits more crimes. He was arrested in October 1976 and indicted for (1) abduction while armed; (2) rape while armed; (3) assault with intent to rape; and (4) threatening to take a life. He was *224sentenced on the rape charge to New Jersey State prison for no less than ten years concurrent to sentences from another county, and on the armed portion to New Jersey State prison for two to five years. The other three charges were dismissed.

He was arrested in October 1977 and indicted for robbery. He was sentenced to New Jersey State prison for a concurrent term of five to seven years.

He was arrested in November 1977 and indicted for robbery and robbery while armed. He was sentenced on the armed robbery to a concurrent term of two to five years. Later in that same month, he was arrested and indicted for robbery and robbery while armed. He was sentenced on both charges to concurrent State prison terms.

Upon being paroled and discharged, he was arrested in September 1984 and charged with kidnapping and attempted sexual assault. He was sentenced to six months in the county jail.

In 1986, he was indicted for burglary, aggravated assault, possession of a weapon for an unlawful purpose and armed robbery. He was sentenced to an aggregate of ten years with five years parole ineligibility concurrent to a violation of parole.

He was paroled again and promptly arrested in December 1992 for the present crimes. Upon making bail for these crimes, he was arrested for two more crimes committed while on bail.

This defendant is the classic incorrigible criminal whose first act upon being released from prison is to commit more crimes. Our criminal laws are designed to protect society from such chronic criminals through the imposition of lengthy prison terms. Our courts have consistently complied with that legislative mandate. In State v. Ghertler, supra, 114 N.J. at 393, 555 A.2d 553, the defendant had a lengthy criminal history. In upholding a maximum sentence imposed by the trial judge, the Supreme Court stated that although the aggregate sentence might be “seen as severe, it is hardly so harsh, so wide of the mark, as to shock the conscience”.

*225A major purpose of the Code of Criminal Justice is “[t]o insure the public safety by preventing the commission of offenses through the deterrent influence of sentences imposed and the confinement of offenders when required in the interest of public protection.” See N.J.S.A. 2C: 1—2(b)(3) (emphasis added). The imperative of public safety was eloquently described in a series of decisions by former Chief Justice Weintraub. See State v. Davis, 50 N.J. 16, 22, 231 A.2d 793 (1967) (“Pre-imminent in the galaxy of values is the right of the individual to live free from criminal attack in his home, in his work, and the streets. The Government is established to that end, as the preamble of the Constitution of the United States reveals and our State Constitution, Art. I, Par. 2, expressly says____”). State v. McKnight, 52 N.J. 35, 52-53, 243 A2d 240 (1968) (“[T]he first right of the individual [is] the right to be protected from criminal attack in his home, in his work, and in the streets. Government is constituted to provide law and order;” the government’s “primary mission [is] to protect the first right of the individual to live free from criminal attack.”); State v. Bisac-cia, 58 N.J. 586, 590, 279 A.2d 675 (1971) (“The first right of the individual is to be protected from attack. That is why we have government, as the preamble to the Federal Constitution plainly says.”).

In sentencing criminals, our Supreme Court has faithfully followed Chief Justice Weintraub’s teaching. In State v. Whitaker, 79 N.J. 503, 401 A.2d 509 (1979), the defendant and his accomplices entered the victims’ homes, assaulted and robbed them. At least one of the accomplices was no more than nineteen years old. The judge imposed an aggregate sentence of between forty-three and fifty years. The Appellate Division concluded that the aggregate sentence was “unduly harsh and punitive and [that] justice will best be accomplished by some modification.” Id. at 504, 401 A.2d 509.

The Supreme Court in restoring the trial court’s sentence found that the Appellate Division had fallen into “grave error.” Ibid. The Court said that defendant’s crimes were not “steeped in *226emotional pressures” nor did they comprise “in an otherwise blameless life, an ‘isolated excursion beyond the pale of the law induced by engulfing circumstances,’ but on the contrary [were] a ‘cold-blooded’ criminal venture____” Id. at 516-17, 401 A.2d 509. As a result, the defendant was not “ ‘an unlikely recidivist ... already ... punished by his continuing deep remorse’ or one whose acknowledgment of wrongdoing would seem contrary to rehabilitation.’ ” Id. at 517, 401 A.2d 509 (citation omitted). The Supreme Court concluded that the sentencing judge had “ ‘properly [given] paramount concern to the magnitude of the crime and the deterrence of others rather than to the attributes of the offender.’ ” Ibid, (quoting State v. Leggeadrini, 75 N.J. 150, 158, 880 A.2d 1112 (1977)).

Here, too, the sentencing judge gave paramount consideration to the magnitude of the defendant’s crimes, to the deterrence of the defendant and other criminals and to the protection of society. See State v. Dunbar, 108 N.J. 80, 97, 527 A.2d 1346 (1987) (the decision to impose an extended term “requires consideration of the need for public protection”). The judge found no mitigating factors. His reasons were “terse” but sufficient. See State v. Ghertler, supra, 114 N.J. at 392, 555 A.2d 553; see also State v. Dunbar, supra, 108 N.J. at 97, 527 A.2d 1346 (“It is not necessary that every sentence be a discourse.”).1

This defendant is indisputably a dangerous criminal who is unremittingly dedicated to a life of violent crime. Judge Kuhlthau imposed a lawful sentence which will protect the public from this predator. In so doing, Judge Kuhlthau complied with Chief Justice Weintraub’s belief that all judges hold office for the protection of a criminal’s next victim. See State v. Bisaccia, supra, 58 N.J. at 590, 279 A.2d 675. I would affirm the defendant’s conviction and sentence.

The existence of sentencing errors here does not require a modification of the aggregate sentence. Hence, a remand is not necessary. We should exercise our original jurisdiction to correct the errors conceded by the State. See R. 2:10-5; see also State v. Megargel, supra, 143 N.J. at 506, 673 A.2d 259.