State v. Megargel

STEIN, J.,

dissenting.

In State v. Roth, 95 N.J. 334, 471 A.2d 370 (1984), this Court established a durable and principled standard for appellate review of criminal sentences. Its basic premise was that “[w]e must avoid the substitution of appellate judgment for trial court judgment,” id. at 365, 471 A.2d 370, and we explained that the power to modify sentences reserved to appellate courts was to be exercised only “when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience.” Id. at 364, 471 A.2d 370. The Court clearly and emphatically stated its commitment to respect the sentencing determinations of trial judges who follow the law:

Pronouncement of judgment of sentence is among the most solemn and serious responsibilities of a trial court. No word formula will ever eliminate this requirement that justice be done. There is no room for trial or appellate courts to consider the public perceptions of sentences: “Judicial recognition of or action upon public opinion against a particular defendant cannot be tolerated in our criminal justice system." State v. Humphreys, 89 N.J. 4, 15, 444 A.2d 569 (1982). We are confident that our judges are people of “fortitude, able to thrive in a hardy climate.” Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 1255, 91 L.Ed. 1546, 1552 (1947). Our new Code reflects a delicate balance between discretion and fixed sentencing. An independent judiciary is its fulcrum. When 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.
[Id. at 365, 471 A.2d 370.]

Based on the Court’s disposition of this appeal, trial judges assigned to the Criminal Part may question the strength of the Court’s commitment to defer to their sentencing determinations. Here, the trial judge that presided over defendant’s six-day jury trial carefully and methodically explained, tracking the applicable provisions of the New Jersey Code of Criminal Justice (Code), the *507basis for his decision to sentence defendant in accordance with N.J.S.A 2C:44-lf(2) to a term appropriate for an offense one degree lower than the offense of which defendant was convicted, first-degree kidnapping. Concluding that the mitigating factors substantially outweighed the sole aggravating factor and that defendant’s involvement in the criminal enterprise was limited, the trial court sentenced defendant to seven-years imprisonment, three years without parole eligibility. A divided panel of the Appellate Division affirmed, the majority observing that “[a]s a reviewing court, we must respect such a reasoned exercise of judgment by a conscientious sentencing judge.” 278 N.J.Super. 557, 566, 651 A.2d 1051 (1995).

Although agreeing with the trial court’s conclusion that “the mitigating factors substantially outweigh the aggravating factors” and noting that “defendant had a limited role in the incident and may have felt forced to participate because all of the assailants had weapons,” ante at 505, 673 A.2d at 269, the Court nevertheless substitutes its judgment for that of the trial court and imposes a sentence of fifteen-years imprisonment with five years parole ineligibility. Id. at 506.

I

The Court unpersuasively attempts to justify the substitution of its own sentence for that of the trial court on the basis of a purported legal error: the Court holds that a downgraded sentence under N.J.SA 2C:44-lf(2) requires a finding not only that the mitigating factors outweigh the aggravating, but that in addition the “interests of justice” — defined for the very first time by the Court as “compelling reasons” separate from the balance of aggravating and mitigating factors, ante at 501, 502, 673 A.2d at 267, 268 — require a downgrade. The Court concludes that the trial court erred in failing to articulate any “compelling reasons” other than the balance of mitigating and aggravating factors to support its sentence. That alleged “error,” on closer examination, cannot bear the weight imposed on it by the Court’s opinion. The *508obvious “compelling reason” relied on by the trial court to support the downgrade was the jury’s acquittal of defendant on charges of first-degree robbery, conspiracy to commit first-degree robbery, possession of a firearm for an unlawful purpose, possession of a handgun without a permit, three charges of aggravated assault, and ¡possession of a shotgun, the jury verdict demonstrating persuasively that the jury believed Megargel’s version of the incident and rejected the victim’s more incriminating version. The Appellate Division panel had no difficulty in concluding that the trial court’s reliance on the jury verdict was a compelling independent factor in its sentencing determination:

We are mindful that the Prosecutor has a different version of Megargel’s involvement based primarily on the testimony of Harris that Megargel was one of the persons who beat and terrorized him. However, Megargel testified that his only participation was to drive the car, and that he drove as the others ordered him to. The jury acquittal of Megargel on the assault, robbery and firearm charges indicates that the jury did not accept Harris’ testimony. The judge’s sentencing reasons indicate that he viewed the evidence as the jury did.
The judge’s sentencing reasons reflect a conscientious and comprehensive analysis of the facts, the aggravating and mitigating factors and the applicable legal principles. The judge was in a good position to make an accurate analysis since he was the trial judge. He heard the testimony of the witnesses, including the testimony of Harris, Lee and Megargel. His findings as to the facts and the meaning of the jury’s verdict must therefore be given great weight.
We also do not minimize this dreadful crime. However, notwithstanding the seriousness of the crime, we cannot find in the face of the judge’s logical and comprehensive reasons that no reasonable sentencing judge could have imposed this sentence. [State v] Ghertler, [ ] 114 N.J. [383,] 388, 555 A.2d 553 [ (1989) ].
The trial judge’s finding as to the interest of justice was not plucked out of thin air. The judge analyzed the meaning of the jury verdict corroborated by his view as the trial judge. He concluded that Megargel had a limited involvement in the criminal enterprise. The judge found many strong and significant mitigating factors as articulately described in his sentencing reasons. The foregoing offers strong support for the judge’s exercise of sentencing judgment and discretion in reaching his conclusion as to the interest of justice. As a reviewing court, we must respect such a reasoned exercise of judgment by a conscientious sentencing judga
[ 278 N.J.Super. at 565-66, 651 A.2d 1051.]

Concededly, the trial court did not state in so many words that the jury’s acquittal of Megargel of all charges other than kidnapping confirmed its view that Megargel had been influenced and *509dominated by Lee and the other perpetrators, and that Megargel’s completely passive role in the incident, his non-involvement in the assaultive conduct or the robbery, his youth and inexperience, and the outpouring of letters attesting to his good character, justified imposition of a sentence appropriate to a crime one degree lower than kidnapping. Surely, reliance on the jury verdict convicting Lee of robbery, conspiracy, aggravated assault, and weapons-possession offenses, while acquitting Megargel of those same charges, was implicit in the trial court’s determination that the interests of justice required a downgrade. Had the trial court made that reliance explicit, the Court would have been compelled to state candidly that it was resentencing defendant because the Court disagrees with the trial court’s sentence and prefers to impose its own.

The Court offers one additional justification for its rejection of the trial court’s sentence, noting that the authorized punishment for first-degree kidnapping ranges from fifteen to thirty years with a twenty-year presumptive term, N.J.S.A 2C:13-lc, 2C:44-lf(l)(a), compared with the fifteen-year presumptive term and ten to twenty-year range authorized for most other first-degree crimes. Accordingly, the Court observes that even “more compelling reasons” are required for the downgrade of an offense carrying an enhanced sentence than would be required for other first-degree offenses. Ante at 502, 673 A.2d at 267. The Legislature, however, has not excluded kidnapping or aggravated manslaughter from the scope of the sentencing downgrade provisions; to the contrary, the preceding paragraph of the very same subsection of the Code, 2C:44-lf(l), sets forth the presumptive terms for kidnapping and aggravated manslaughter, making unmistakable the Legislature’s intention to make those offenses subject to the sentencing downgrade authorization set forth in N.J.S.A 2C:44-lf(2).

That the Court may not find the trial court’s reasons “compelling enough” to support its downgraded sentence does not constitute legal error, nor a failure to adhere to the Code’s sentencing *510principles. It reflects merely a difference of opinion between the reviewing Court and the court that heard the evidence, the very kind of difference of opinion that we anticipated in Roth when we pledged not to second-guess trial judges who adhere to the Code’s sentencing principles. 95 N.J. at 365, 471 A.2d 370.

An additional observation is warranted about the real-time difference between the Court’s sentence of fifteen years with five years parole ineligibility and the trial court’s sentence of seven years and three years parole ineligibility. Parole statistics confirm that the majority of sentenced offenders are granted parole at the first hearing for which they are eligible, suggesting that two years is the real-time difference between this Court’s sentence and that imposed by the trial court. The Appellate Division’s observation about that sentencing difference is persuasive:

The issue here is not jail or freedom. If the sentencing judge had not sentenced Megargel as a second degree offender, the judge would probably have imposed the minimum sentence for the first degree crime. This would have been fifteen years with a five year parole ineligibility term. The defendant as a first offender would very likely have been paroled upon service of the five year ineligibility term.
Thus the central issue is whether we should reverse a sentencing judge’s carefully reasoned determination that this defendant, an impressionable, trusting, and naive eighteen year old first offender, whose involvement in the crime was much less than the others, should serve three rather than five years in state prison. Our judicial conscience is not shocked by three years rather than five. A reversal would be second guessing the sentencing judge’s determination by substituting our judgment for his.
[ 278 N.J.Super. at 567, 651 A.2d 1051.]

II

In State v. Roth, supra, 95 N.J. 334, 471 A.2d 370, Justice O’Hem explained that the Code’s sentencing format was based on a model of presumptive sentencing, pursuant to which

the legislature would break crimes down into sub-categories, establish degrees of severity, determine how much the presumptive first offender sentence would be increased for succeeding convictions, define specific aggravating or mitigating factors, and provide that “[o]nly in truly extraordinary and unanticipated circumstances would the judge be permitted to deviate from the presumptive sentence beyond the narrow range permitted by an ordinary finding of aggravating or mitigating factors.”
[Id, at 354-55, 471 A.2d 370 (quoting Fair and Certain Punishment, Report of the Twentieth Century Fund Task Force on Criminal Sentencing (1976)).]

*511The Code’s sentencing structure is designed to achieve uniformity in sentence and to narrow the scope of judicial discretion by requiring sentencing judges to sentence within prescribed statutory ranges, and to statutory presumptive terms unless shorter or longer sentences are required because of aggravating and mitigáis ing factors. As we observed in State v. Hodge, 95 N.J. 369, 379, 471 A.2d 389 (1984): “The Code is a restraint upon the discretion of judges in individual cases. But there can be no justice without a predictable degree of uniformity in sentencing____ The loss of unfettered discretion may be the price of evenhanded justice.” Thus, our commitment not to second-guess the exercise of discretion by sentencing judges in accordance with the Code, Roth, supra, 95 N.J. at 365, 471 A.2d 370, is qualified by the pragmatic recognition that the Code severely limits the circumstances in which sentencing judges have significant discretion to exercise.

N.J.S.A 2C:44-1 includes provisions that permit sentencing judges to depart from the Code’s precise sentencing guidelines under certain prescribed conditions. Pursuant to N.J.S.A 2C:44-1(d), a court is mandated to sentence offenders convicted of first- or second-degree crimes to a term of imprisonment “unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.” However, we have characterized the standard for permitting noncustodial sentences for first- and second-degree offenders as “extremely narrow,” to be “applied only under circumstances that are ‘truly extraordinary and unanticipated.’” State v. Jarbath, 114 N.J. 394, 406, 555 A.2d 559 (1989) (quoting Roth, supra, 95 N.J. at 358, 471 A.2d 370). The Court’s opinion acknowledges that the standard for allowing sentencing courts to impose a non-custodial sentence on first- or second-degree offenders is considerably more stringent than that governing downgrading of sentences under 2C:44-lf(2). Ante at 499-500, 673 A.2d at 266.

*512N.J.S.A. 2C:44-le establishes a presumption of non-incarceration for first offenders convicted of crimes other than first- or second-degree offenses, but authorizes the court to impose a term of imprisonment if “having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that ... imprisonment is necessary for the protection of the public.” We noted in State v. Gardner, 113 N.J. 510, 551 A.2d 981 (1989), the high standard that must be met before that provision of the Code properly may be invoked:

Therefore, before the presumption against imprisonment of a first offender who pleads guilty to a crime of the third degree may be overcome, the sentencing court must be persuaded by a standard that is higher than “clear and convincing” evidence that incarceration is necessary. And once the presumption has been overcome, the defendant must be sentenced according to the statutory guidelines.
[Id. at 517-18, 551 A.2d 981.]

By comparison, the downgrade authorized by N.J.S.A 2C:44-lf(2), because it does not implicate the “in or out” decision— whether the defendant is to be incarcerated — should be governed by a less rigid standard, as the Court’s opinion acknowledges. Ante at 499-500, 673 A.2d at 266. The statute provides:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
[N.J.SA 2C:44-lf(2)J

Although the legislative history is sparse, the obvious legislative objective was to authorize sentencing judges already required by the Code to sentence a first- or second-degree offender to imprisonment, to impose a prison term appropriate to an offense one degree lower if the statutory conditions are satisfied. The specific condition is that the sentencing judge be “clearly convinced that the mitigating factors substantially outweigh the aggravating factors,” a condition that the Court agrees was correctly found by the trial court to have been met. The general condition is that the “interests of justice” demands the downgrade.

*513As the Court notes, however, the term “interests of justice” is defined neither in the definitional section of the Code, N.J.S.A. 2C:1-14, nor in five other sections of the Code in which that phrase or a variant is used. Ante at 496, 673 A.2d at 264-265. The conclusion is inescapable that the Legislature’s reliance on the “interests of justice” standard in N.J.S.A. 2C:44-lf(2) marks one of the rare circumstances in the Code in which a significant residuum of sentencing discretion is reserved to trial judges, a discretionary power exceeded only by a sentencing court’s discretion to sentence defendants consecutively or concurrently. Cf. State v. Ghertler, 114 N.J. 383, 393-94, 555 A.2d 553 (1989) (reversing Appellate Division’s imposition of concurrent rather than consecutive sentences prescribed by trial court and observing that mere disagreement over sentencing results does not justify substitution of appellate court’s sentencing preference over that chosen by sentencing court).

That we have not heretofore reviewed a sentence imposed pursuant to the downgrade authorization, despite the State’s right to appeal, see N.J.S.A 2C:44-lf(2), suggests that the discretion conferred on sentencing judges by the downgrade provision has not been abused. To the contrary, statistics compiled by the Administrative Office of the Courts reveal that during 1992 and 1993, a total of 1198 first- and second-degree offenders were sentenced pursuant to 2C:44-lf(2) as if the offense they committed was one degree less serious, but of that number 1178 downgrades, or 98.3%, were imposed pursuant to and presumably authorized by plea agreements. Only twenty sentencing downgrades statewide during those same two years were imposed pursuant to a trial court’s exercise of sentencing discretion. See Memorandum from Criminal Practice Division, Administrative Office of the Courts (Feb. 15, 1996) (on file with Clerk of the Supreme Court of New Jersey). That statistically insignificant use of the Code’s downgrade authorization, combined with the scarcity of reported decisions concerning sentencing courts’ applications of N.J.S.A 2C:44-lf(2), confirms that the limited grant of discretionary authority to downgrade sentences in the “interests of justice” has been spar*514ingly exercised by the Criminal Part bench. No apparent justification exists for the Court to cast a shadow of disapproval over a discretionary sentencing power so rarely invoked by trial courts.

I have no disagreement with the Court’s conclusion that the reference to “interests of justice” contemplates a determination by the sentencing court that goes beyond the balancing of aggravating and mitigating factors. But all that the Court has managed to add to the balance of aggravating and mitigating factors is a requirement that the defendant establish “compelling reasons” for the downgrade, ante at 502, 673 A.2d at 267, a “standard” that it extracts from a single Appellate Division decision, State v. Jones, 197 N.J.Super. 604, 607, 485 A.2d 1063 (1984), and that even “more compelling reasons” are required to downgrade a sentence for an offense for which the Legislature has prescribed an enhanced penalty. Ante at 502, 673 A.2d at 267. The substantive content of the reasons compelling enough to justify a downgrade is conspicuously absent from the Court’s analysis.

The Court suggests, however, that focus on the offense rather than the offender is critical in formulating a proper sentence, and that the defendant’s role in the offense may be considered in assessing the need for deterrence. Ante at 500, 673 A.2d at 266. That concession implies that the jury’s determination through its verdict that defendant was an incidental participant in the kidnapping, uninvolved in the robbery, assaultive conduct, or weapons possession that facilitated and characterized the kidnapping offense, could constitute a “compelling reason” to justify the downgraded sentence, especially where the trial court concurs in the jury’s assessment that defendant’s role was passive and incidental. The Court’s opinion neither accepts nor rejects the contention that defendant’s limited participation in the offense, verified by the jury verdict, meets the standard of “compelling reasons,” simply observing that the trial court failed to “set forth its reasons [on the record] why the interest of justice demands a downgrade,” ante at 502, 673 A.2d at 268, and concluding categorically that the downgraded sentence was error.

*515I find the Court’s analysis and conclusion unpersuasive. I am convinced that a fair reading of this record, combined with the trial court’s careful and conscientious application of Code principles to explain the downgraded sentence, justify an affirmance of the sentence even under the “compelling reasons” test newly adopted by the Court to add content to the statutory interest-of-justice standard. Affirmance of the sentence does not mean that the Court would have imposed the same sentence itself, but rather would have signified the Court’s adherence to the basic precept that “[w]e must avoid the substitution of appellate judgment for trial court judgment.” Roth, supra, 95 N.J. at 365, 471 A.2d 370. The Court’s substitution of its own sentence that effectively imposes only two years more “real time” than the trial court’s sentence reflects a disagreement rooted not in the Code’s sentencing principles, but rather in a different perception about the precise term of incarceration that defendant should serve. Given the trial court’s obvious effort to adhere scrupulously to Code principles, the Court’s intercession may be viewed as a warning that downgraded sentences, however rare, are subject to searching appellate review and may readily be set aside if the appellate court concludes that a longer sentence is more appropriate.

I would affirm the judgment of the Appellate Division upholding the sentence imposed by the trial court.

For reversal and vacation — Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and COLEMAN — 6.

For affirmance — Justice STEIN — 1.