Decided: January 10, 1985.
STATE OF NEW JERSEY, PLAINTIFF,
RADAMES GUZMAN, DEFENDANT
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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
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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
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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, . . . during which the defendant shall not be eligible for parole. . . . [Emphasis supplied]
Chapter 569 of the Laws of 1981 added the underscored language effective January 18, 1982. The Senate Judiciary Committee statement appended to Assembly Bill 1904, which became chapter 569, provided, in part, as follows:
There is . . . no criteria provided to guide a court in determining whether to impose a mandatory term of parole ineligibility. Assembly Bill No. 1904 would provide that if the court is clearly convinced that that the aggravating factors (i.e., the seriousness of harm to the victim) set forth in 2C:44-1 a substantially outweighs the mitigating factors (i.e., no prior criminal history) set forth in 2C:44-1 b, the court shall impose a term of parole ineligibility.
See also N.J.S.A. 30:4-123.51(a). It is clear, therefore, that in order to impose a period of parole ineligibility for an ordinary term sentence (unless ineligibility is otherwise mandated by another provision of the code, see N.J.S.A. 2C:14-6, 43-6(c)),*fn2 the court must be "clearly convinced" that the aggravating factors "substantially outweigh" the mitigating. See State v.
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Roth, supra, 95 N.J. at 359; State v. Hodge, 95 N.J. 369, 376 (1984); State v. Yarbough, 195 N.J. Super. 135, 142-143 (App.Div.1984), certif. granted 99 N.J. 195 (1984). Because the determination of the fixed term sentence requires the same balancing of the aggravating and mitigating factors, this court concludes that, unless a specific provision of the code mandates imposition of a mandatory minimum sentence or period of parole ineligibility,*fn3 no period of parole ineligibility can be imposed unless the sentencing judge concludes that the "presumptive term" should be increased. The increase need not necessarily be to the top of the range, and there can be no mechanical test with respect to the amount of increase above the "presumptive term." However, the statement of reasons must indicate why the aggravating factors substantially outweigh the mitigating and why an ineligibility term is imposed. See N.J.S.A. 2C:43-2(e); R. 3:21-4(e).
In this case the prosecutor recommended a sentence of 364 days.*fn4 At the time of plea defendant was advised of the possibility of a parole ineligibility term and the question is whether it can be imposed consistent with the recommendation. Defendant did not suggest that he entered a plea with expectations that no ineligibility term could be imposed. Certainly the defendant could assert the absence of a knowing, voluntary
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plea, and the right to withdraw, or seek to have the ineligibility term stricken, had the subject not been addressed at the time of plea. See R. 3:9-2; State v. Kovack, 91 N.J. 476 (1982). Nevertheless, the court is faced with a negotiated recommendation permitting a maximum sentence only three months above the "presumptive term."
Negotiated pleas must be encouraged as a realistic and practical means of disposing of criminal matters, subject, of course to acceptance by the court at the time of disposition. Plea negotiations are now recognized by the Rules Governing the Courts of New Jersey, and the results of negotiations must be reported to the court at the time of the pretrial conference. R. 3:13-1(a). Our rules also provide a procedure for disclosure of the plea agreement to the court, entry of the negotiated plea and the right to withdrawal upon nonapproval of the court at the time of sentence. R. 3:9-3. Of concern is the degree of deference the court, as the ultimate sentencing authority, should give to the prosecutor's recommendation as part of a negotiated plea. Note the concept of "prosecutorial discretion" with respect to pre-indictment dispositions and in other contexts. See, e.g., State v. Hermann, 80 N.J. 122 (1979) (post indictment P.T.I. consent of the prosecutor for diversion); State v. Leonardis, 73 N.J. 360 (1977); State v. Laws, 51 N.J. 494, 510-511 (1968), cert. den. 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968); State v. Ashby, 43 N.J. 273 (1964); R. 3:25-1. See also, e.g., State v. Spinks, 66 N.J. 568 (1975) where the court determines to sentence within the maximum confines of a negotiated plea recommendation.
N.J.S.A. 2C:1-2(b) expresses the general purposes of the code provisions concerning sentencing. The purposes include, among others, the desire to "safeguard offenders against excessive, disproportionate or arbitrary punishment." N.J.S.A. 2C:1-2(b)(4). To that end, the classification of offenses by degree, establishment of a sentencing range for each degree and creation of the "presumptive term" within the range, all
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embody the legislative intent to minimize undue sentence disparity. Cf. State v. Roth, supra. Although necessary and appropriate, the plea negotiation process to some degree affects those ends, at least when the plea recommendation is not consistent with the code's sentencing pattern.*fn5
Acceptance of the negotiated plea in this case would not require reduction of the "presumptive term." Here, the aggravating factors clearly outweigh the mitigating. There may be instances where an ineligibility term may be imposed even if the presumptive term is not increased, or substantially increased, if there are specific reasons explored on the record in connection with a negotiated plea, or otherwise, provided that the court is clearly convinced that the aggravating factors substantially outweigh the mitigating.
Because all sentences of imprisonment must consider actual parole consequences, N.J.S.A. 2C:44-1(c)(2), State v. Heisler, supra, I am convinced that the service of 182 days before parole eligibility (although less than the minimum nine month period before parole eligibility on any specific term sentence to the custody of the Commissioner of Corrections -- an exception to eligibility after 1/3 of the sentence, but more than presumptive parole after service of 1/3 of a 364 days sentence to the County Jail, minus credits, see N.J.S.A. 2C:43-10; N.J.S.A. 30:4-123.51(a), (g)) is an appropriate period to be served given the particular offense and the aggravating and mitigating
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factors. Accordingly, while I did not impose a specific sentence substantially above the "presumptive term," but not substantially above it, the recommendation was accepted, and defendant was sentenced to the Essex County Jail Annex for 364 days, 182 of which are to be served before parole eligibility.*fn6