ORAL ARGUMENT SENTENCING GUIDELINES _____________________________ PREPARED BY: Central Appellate Research Staff August 2005 Revision © 2005 TABLE OF CONTENTS INTRODUCTION............................................................................................................III I. SETTING A TERM OF IMPRISONMENT ............................................................1 II. CONCURRENT AND CONSECUTIVE SENTENCES........................................26 III. PRESUMPTIONS OF IMPRISONMENT OR NONIMPRISONMENT.................34 IV. EXTENDED TERMS ..........................................................................................41 V. PAROLE INELIGIBILITY...................................................................................58 VI. GRAVES ACT SENTENCING............................................................................76 VII. SENTENCES ASSOCIATED WITH PLEA AGREEMENTS..............................86 VIII. SENTENCING PROCEDURE..........................................................................101 IX. LEGALITY OF SENTENCES...........................................................................112 X. STATE APPEALS............................................................................................124 XI. MOTIONS FOR RECONSIDERATION............................................................132 XII. RESTITUTION..................................................................................................134 XIII. FINES...............................................................................................................146 XIV. VICTIMS OF CRIME COMPENSATION BOARD AND OTHER ASSESSMENTS..............................................................................................152 XV. APPLICATIONS FOR ADMISSION OR TRANSFER INTO DRUG TREATMENT PROGRAM.......................................................................................................158 XVI. COMPREHENSIVE DRUG REFORM ACT......................................................162 XVII. SEX OFFENDER SENTENCING.....................................................................180 XVIII. DETERMINATION OF TIME CREDITS ...........................................................189 XIX. SENTENCES AS CRUEL AND UNUSUAL PUNISHMENT ............................202 XX. MERGER..........................................................................................................207 XXI. SENTENCING AMONG CODEFENDANTS.....................................................210 TABLE OF AUTHORITIES.........................................................................................214 APPENDIX ii INTRODUCTION This Manual is designed to outline the subjects that will be presented on the court's oral argument sentencing calendars. It provides discussions of the general law governing sentencing issues as well as more specific topics that have been addressed by statutory and decisional law. The outline is structured to give brief discussions of various relevant subjects and is designed to serve as a useful bench reference and research supplement. Since it is intended as a complement to the Code, statutory sections have not been reproduced; they have been paraphrased where pertinent. The research into statutory changes and published court decisions is current through August 11, 2005. Legal discussion of relevant statutory provisions is addressed to the current versions of these provisions, unless specifically noted otherwise. iii I. SETTING A TERM OF IMPRISONMENT A. General Criteria for Withholding or Imposing Sentence of Imprisonment 1. Except as otherwise provided by the Code, all persons convicted of an offense shall be sentenced in accordance with Chapter 43, N.J.S.A. 2C:43-1 to -22. Authorized dispositions are found at N.J.S.A. 2C:43-2. These include but are not limited to payment of a fine or restitution, placement on probation, performance of community- related service, and imprisonment. This manual deals primarily with sentences of imprisonment. 2. In determining whether to withhold or impose a sentence of imprisonment, a court considers the presumptions of imprisonment and nonimprisonment (N.J.S.A. 2C:44-1(d) and N.J.S.A. 2C:44-1(e), respectively), which are discussed separately at Section III, and the aggravating and mitigating circumstances (N.J.S.A. 2C:44-1(a) and N.J.S.A. 2C:44-1(b)). 3. N.J.S.A. 2C:43-2 does not of itself give a court the power to suspend a sentence. State v. Rivera, 124 N.J. 122, 125 (1991). Rather, a court may suspend the imposition of a sentence only after first determining that a noncustodial sentence is authorized and appropriate. Id. at 126. This means that a sentencing court must first look to the presumption of incarceration set forth in N.J.S.A. 2C:44-1(d). Id. at 125. 4. Where a court determines that probation is an appropriate sentence, it should nevertheless identify and weigh the aggravating and mitigating factors that led to that decision. State v. Baylass, 114 N.J. 169, 174 (1989). 5. The primary difference between suspension and probation is that probation places the defendant under the supervision of the county probation office and carries a reporting requirement, whereas suspension is ordinarily without such 1 supervision. Hence, the suspended imposition of sentence is a less intrusive punishment than a probationary term. State v. Cullen, 351 N.J. Super. 505, 508 (App. Div. 2002); State v. Malave, 249 N.J. Super. 559, 563-64 (App. Div. 1991), certif. denied, 127 N.J. 559 (1992). 6. According to N.J.S.A. 2C:44-5(f)(1), when a defendant is sentenced for more than one offense, a court may not impose both a sentence of probation and a sentence of imprisonment, except as authorized by N.J.S.A. 2C:43-2(b)(2) (allowing "split sentence" of up to 364 days in county jail to be served as part of probation). State v. Crawford, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 10). A sentence of probation assumes that a defendant can be rehabilitated without serving a term of imprisonment in excess of 364 days. Ibid. 7. When a sentence of imprisonment in excess of one year is imposed, the service of such a sentence satisfies a suspended sentence on another count. Id. at 11 (citing N.J.S.A. 2C:44-5(f)(3)). B. Determination of Length of Term of Imprisonment 1. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court considers aggravating and mitigating circumstances. a. N.J.S.A. 2C:44-1(a): Recites the aggravating factors, numbered (1) through (13). A sentencing court lacks the power to import aggravating factors not contained within the Code's guidelines. State v. Thomas, 356 N.J. Super. 299, 310 (App. Div. 2002). But see State v. Taylor, 226 N.J. Super. 441, 454 (App. Div. 1988) (N.J.S.A. 2C:44-1(a) does not limit sentencing judge to thirteen specific factors). i. The cruel manner of an attack may be considered an aggravating factor. State v. Soto, 340 N.J. Super. 47, 71- 72 (App. Div.), certif. denied, 170 2 N.J. 209 (2001). "Cruel" as used in N.J.S.A. 2C:44-1(a)(1) may be construed to require the intent to inflict pain or suffering on the victim. State v. O'Donnell, 117 N.J. 210, 217-18 (1989). ii. When considering the harm a defendant caused to a victim for purposes of determining whether N.J.S.A. 2C:44-1(a)(2) is implicated, a court should engage in a "pragmatic assessment of the totality of harm inflicted by the offender on the victim," so that defendants who purposely or recklessly inflict substantial harm receive more severe sentences. State v. Carey, 168 N.J. 413, 426 (2001); State v. Kromphold, 162 N.J. 345, 358 (2000). iii. The "vulnerability" referred to in N.J.S.A. 2C:44-1(a)(2) is not limited to the intrinsic condition of the victim and includes any reason that renders the victim substantially incapable of resistance. State v. O'Donnell, supra, 117 N.J. at 218-19. See N.J.S.A. 2C:20-25(h) (effective April 14, 2003) (computer-related theft against person under eighteen years old "shall" constitute aggravating circumstance for purpose of imposing sentence). iv. The risk that a defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), is supported by evidence that the defendant denied responsibility for the crime. State v. Carey, supra, 168 N.J. at 427. v. Depreciating the seriousness of the offense, N.J.S.A. 2C:44-1(a)(4), deals only with violations of public trust under Chapters 27 and 30, or breaches of a position of trust or confidence. 3 State v. Mosch, 214 N.J. Super. 457, 463 (App. Div. 1986), certif. denied, 107 N.J. 131 (1987). vi. The "organized criminal activity" factor of N.J.S.A. 2C:44-1(a)(5) applies if there is proof that the defendant is involved in such activity, even though the offenses for which he has been convicted have no relationship to that activity. State v. Merlino, 208 N.J. Super. 247, 259 (Law Div. 1984), aff'd in part, vacated in part on other grounds, 208 N.J. Super. 147 (App. Div. 1985), certif. denied, 103 N.J. 460 (1986). vii. Prior convictions for driving while under the influence (DWI) may not be considered an aggravating factor under N.J.S.A. 2C:44-1(a)(6), because DWI does not constitute an "offense" under N.J.S.A. 2C:1-14(k). However, such prior convictions may be considered as part of the defendant's overall personal history, much like municipal and juvenile court records are considered. State v. Radziwil, 235 N.J. Super. 557, 575-76 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990). See State v. Pindale, 249 N.J. Super. 266, 288 (App. Div. 1991) (judge appropriately considered defendant's prior juvenile record and prior driving record where crimes involved operation of motor vehicle). viii. A finding that there is a need to deter a defendant from similar conduct in the future, pursuant to N.J.S.A. 2C:44-1(a)(9), may be supported by a defendant's consistent denial of involvement in wrongdoing and lack of remorse. State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991). 4 ix. The need for public safety and deterrence increases proportionally with the degree of the offense. State v. Carey, supra, 168 N.J. at 426. x. A finding that the imposition of a fine or other monetary penalty would be perceived as a cost of doing business, pursuant to N.J.S.A. 2C:44-1(a)(11), applies only when the sentencing judge is balancing a non- custodial term against a prison sentence. State v. Dalziel, 182 N.J. 494, 502 (2005); State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd o.b., 175 N.J. 612 (2003). Hence, unless the court is being asked to overcome the presumption of imprisonment, this factor should not be used when sentencing for first and second degree crimes. State v. Rivera, supra, 351 N.J. Super. at 110. b. N.J.S.A. 2C:44-1(b): Recites the mitigating factors, numbered (1) through (13), that the court "may properly consider." Despite the use of this language, where mitigating factors are amply based in the record before the sentencing judge, they must be found. State v. Dalziel, supra, 182 N.J. at 504. i. Distribution of cocaine may constitute conduct that causes and threatens serious harm, so as to render inapplicable N.J.S.A. 2C:44-1(b)(1) and (2). State v. Tarver, 272 N.J. Super. 414, 434-35 (App. Div. 1994). ii. "Strong provocation" under N.J.S.A. 2C:44-1(b)(3) refers to the conduct of the victim towards the actor, not to the defendant's own mental compulsions. State v. Jasuilewicz, 205 N.J. Super. 558, 576 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986). 5 iii. Drug or alcohol dependency or intoxication does not necessarily satisfy the mitigating factor set forth in N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify the conduct). State v. Ghertler, 114 N.J. 383, 390 (1989); State v. Setzer, 268 N.J. Super. 553, 567-68 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). iv. A history of continuous physical, sexual, and psychological abuse committed by the victim on the defendant may be highly relevant in determining whether the following mitigating factors apply: N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate conduct would cause or threaten serious harm); N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify conduct); and N.J.S.A. 2C:44-1(b)(5) (victim induced or facilitated commission of crime). State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002). v. A court may give minimal weight to a defendant's lack of a previous record, N.J.S.A. 2C:44-1(b)(7), if it explains the reason for doing so. State v. Soto, supra, 340 N.J. Super. at 72. vi. Where N.J.S.A. 2C:44-1(b)(8) (conduct was result of circumstances unlikely to recur), N.J.S.A. 2C:44-1(b)(9) (defendant is unlikely to commit another crime), and N.J.S.A. 2C:44-1(b)(10) (defendant is likely to respond to probationary treatment) apply, such factors essentially negate the need for specific deterrence. State v. Briggs, supra, 349 N.J. Super. at 505. vii. Youth may be considered a mitigating factor if the defendant was 6