This matter requires examination of the relationship between the specific-term sentence imposed by the court under the Code of Criminal Justice and its ability to impose a period of parole ineligibility. The subject must be considered in the context of the reasons for the sentence imposed on December 7, 1984, R. 3:21-4(e), and embodied in the judgment, R. 3:21-5. The reasons are being supplemented herein and embodied in this formal opinion. Cf. R. 3:21-10(a) (reconsideration of sentence on the court's own initiative).
Defendant, Radames Guzman, pled guilty to fourth degree theft, in violation of N.J.S.A. 2C:20-2(b)(3) and :20-3. The plea was conditioned upon the prosecutor's recommendation (pursuant to R. 3:9-3) that another count of the same indictment be dismissed and that any custodial sentence imposed be limited to 364 days in the Essex County Jail.
The presentence report revealed 12 prior convictions, three indictable and nine nonindictable, for transactions involving theft, burglary and receiving stolen property. Moreover, the offense to which defendant pled guilty was admittedly well planned and organized. The court therefore concluded, particularly based on conduct following the imposition of prior sentences and the fact that defendant was on parole at the time of this offense, that there were various aggravating factors, as
set forth in N.J.S.A. 2C:44-1(a). They include the risk of another offense, the prior record after defendant had been placed on probation and the need for individual deterrence. See N.J.S.A. 2C:44-1(a); See also N.J.S.A. 2C:44-5(c). While certain mitigating factors, including the needs of defendant's dependents and the impact that further incarceration would have on defendant's family, were considered, see N.J.S.A. 2C:44-1(b), the court was clearly convinced that the aggravating factors substantially outweighed the mitigating.
Given defendant's prior convictions there is no presumption against imprisonment resulting from defendant's guilty plea to a fourth degree crime, see N.J.S.A. 2C:44-1(e), and the court concluded that imprisonment was warranted.*fn1 The question is whether a period of parole ineligibility can also be imposed.
N.J.S.A. 2C:43-6 provides for ranges of specific term sentences for each degree of crime. See generally State v. Roth, 95 N.J. 334, 356-361 (1984). N.J.S.A. 2C:43-6(a)(4) provides that a specific term not exceeding 18 months shall be fixed for a crime of the fourth degree. N.J.S.A. 2C:44-1(f)(1) establishes the "presumptive term" for each degree of crime. That term should ordinarily be set whenever a sentence of imprisonment is imposed, "unless the preponderance of aggravating factors
or preponderance of mitigating factors set forth in [ N.J.S.A. 2C:44-1] a and b weighs in favor of higher or lower terms within the limits provided in 2C:43-6." The "presumptive term" for a fourth degree crime is nine months. N.J.S.A. 2C:44-1(f)(1).
Since February, 1981, when chapter 31 of the Laws of 1981 was adopted, a period of parole ineligibility could be imposed in connection with a sentence for "any crime." N.J.S.A. 2C:43-6(b), as written at the time of this offense and as provided today, states:
As part of a sentence for any crime, where the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, as set forth in subsections a and b of 2C:44-1, the court may fix a minimum term not to exceed one-half of the term set pursuant to [ N.J.S.A. 2C:43-6] a, . . . ...