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State v. Yarbough

Decided: October 7, 1985.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JOHN YARBOUGH AND JUDY WILSON SMITH, A/K/A JUDY YARBOUGH, DEFENDANTS-RESPONDENTS



On certification to the Superior Court, Appellate Division, whose opinion is reported at 195 N.J. Super. 135 (1984).

For remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein join in this opinion. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.

O'hern

This is the first time that we have addressed the standards under the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4 (Code), that shall govern courts in determining whether sentences for multiple offenses are to be served consecutively or concurrently. We determine that in fashioning consecutive or concurrent sentences under the Code, sentencing courts should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing. To achieve these goals, we outline specific standards that shall generally guide courts in comparable cases in the exercise of such sentencing discretion. In our review of the sentencing procedures below, we determine that the sentences imposed by the courts below were not consistent with the standards we announce today. We remand the case for sentence in accordance with these standards.

I

The facts of this case are sordid. They have been set forth in detail in the opinion below. 195 N.J. Super. 135 (App.Div.1984). We repeat only those facts essential to disposition. The two defendants, Judy Wilson Smith and John Yarbough, were convicted by an Essex County jury on three counts of aggravated sexual assault upon Smith's eleven-year-old daughter, Kimberly, in violation of N.J.S.A. 2C:14-2a., committed between June 1, 1982, and August 17, 1982. Defendants were also convicted of trying to cover up these crimes by giving false information

and otherwise acting to hinder their apprehension in violation of N.J.S.A. 2C:29-3b.*fn1

In the late spring or early summer of 1982, Kimberly arrived from Chicago to live with her mother, Judy Smith, and her mother's male companion, John Yarbough, in an apartment they occupied together in East Orange, New Jersey. From the date of her arrival, she was sexually abused. What is so incredibly shocking about this case is the callousness of the crimes. Unlike other situations in which the sexual abuse of a child by one in parental authority is concealed from the other, these defendants were partners in crime. In the three separate periods that were testified to, Smith not only did not intervene on behalf of her child, she on occasion condoned the abuse with mocking questions. When the sexual abuse was revealed through Kimberly's confidences in a friend, Smith went so far as to threaten Kimberly's life. Both tried to send the victim back to Chicago to cover up the crimes, but Kimberly was returned to New Jersey and defendants were convicted of the crimes for which they were charged.

Each stood to be sentenced on the three counts of aggravated sexual assault and the four counts of hindering apprehension. Their conduct would test the capacity of the most resolute of judges to focus on the Code's grading of the crime and not the criminal in fashioning a sentence. Yet that is one of the central goals that we have set for ourselves in defining sentencing standards under the Code. State v. Hodge, 95 N.J. 369, 376-77 (1984). The crimes of which they were convicted were of two grades. N.J.S.A. 2C:14-2a.(1) makes sexual penetration of a child of these years a first-degree crime without regard to the

use of force. (The supervisory relationship of these defendants with the child would have made it a first-degree crime also as to a victim under sixteen. N.J.S.A. 2C:14-2a.(2)(b)). As a crime of the first degree, the offense is the most serious, with the exception of murder, in the Code.*fn2 It warrants the highest range of punishment under the Code -- up to twenty years imprisonment with a ten-year parole disqualifer. N.J.S.A. 2C:43-6a.(1). The range of sentence for the third-degree offenses of hindering apprehension is between three and five years, with a possible parole disqualifer of one-half the sentence imposed. N.J.S.A. 2C:43-6a.(3); N.J.S.A. 2C:43-6b.

Following conviction in 1983, defendant Yarbough was sentenced on the three counts of aggravated sexual assault to three consecutive maximum twenty-year terms of imprisonment, with consecutive ten-year terms of parole ineligibility, and on each of the four hindering-apprehension counts, to four-year terms of imprisonment with parole disqualifiers of two years. Two of the hindering-apprehension sentences were made consecutive to each other and to the sentences imposed on the sexual-assault counts. Two were made concurrent to each other and to the sentences imposed previously. Yarbough was also fined $8,300 made payable to the Violent Crimes Compensation Board. His aggregate sentence was sixty-eight years imprisonment with a minimum parole ineligibility of thirty-four years.

Defendant Smith was sentenced on the three aggravated-sexual-assault charges to consecutive fifteen-year terms with consecutive seven-year periods of parole ineligibility, and on the four hindering-apprehension charges, to four four-year terms with parole disqualifiers of two years. These sentences were made concurrent to each other and to the terms imposed on the sexual-assault charges. Smith was also fined $1,500 and penalized

a total of $1,700, made payable to the Violent Crimes Compensation Board. Smith's aggregate sentence was thus forty-five years imprisonment with a parole-ineligibility period of twenty-one years.

On appeal, the Appellate Division, in an unreported opinion, affirmed their convictions, but remanded the matter to the trial court to consider the sentences imposed in light of our decisions in State v. Hodge, supra, 95 N.J. 369, and State v. Roth, 95 N.J. 334 (1984), which were announced on February 7, 1984. Following two sentencing hearings, the trial court modified the sentences for each defendant by reducing the first of the sexual assaults to fifteen years with a five-year parole disqualifer. As modified, Yarbough's aggregate sentence was sixty-three years imprisonment with a parole disqualifer of twenty-nine years, and Smith's aggregate sentence was forty-five years imprisonment with a parole disqualifer of nineteen years.

On defendants' further appeal, the Appellate Division concluded that the trial court had incorrectly addressed the aggravating and mitigating factors specified in N.J.S.A. 2C:44-1a. and b. 195 N.J. Super. at 142-44. It found that the court had invoked as aggravating factors facts that the Legislature had incorporated into the Code as part of the original grading of the offense, for example, that the crime involved an eleven-year-old child and that the defendants had betrayed their position of responsible trust for the child. Under the Code, the Legislature has already incorporated these factors in rating the crime as one of the first degree. Aggravating and mitigating factors other than the crime itself are to be weighed under N.J.S.A. 2C:44-1f.(1) in order to arrive at an appropriate sentence within the maximum/minimum range specified in N.J.S.A. 2C:43-6a. for each degree of crime. A list of the applicable aggravating and mitigating factors, other than the crime itself, is contained in N.J.S.A. 2C:44-1a. and b. On balance, depending on the preponderance of aggravating or mitigating factors, the court may impose a sentence within the maximum

and minimum range provided for the degree of the offense. If "clearly convinced" that the aggravating factors substantially outweigh the mitigating factors, the court may also impose a period of parole ineligibility pursuant to N.J.S.A. 2C:43-6b.

Because appellate review of sentencing requires that the trial court apply correct legal standards in imposing sentence, the Appellate Division concluded that the sentences could not be sustained. Because it had specifically remanded the matter to the sentencing court to exercise its discretion in accordance with the Code's standards, the court declined to remand the matter again and instead exercised original jurisdiction. Although recognizing that sentences in other cases are not a certain guide, the Appellate Division examined recent sentences in comparable cases and, in an effort to assure a predictable degree of uniformity in sentencing, it considered such sentencing patterns to be a confirmation of its view that the aggregate sentences imposed here were excessive.

As to defendant Yarbough, for the aggravated sexual assaults, the court reimposed the twenty-year term with a ten-year parole disqualifer on the first sexual-assault charge. However, the sentences imposed on the two remaining sexual charges were made concurrent to each other and to the sentence imposed on the first assault. On the hindering-apprehension counts, on one count the Appellate Division imposed a four-year term with a parole ineligibility of two years, and the sentence was made consecutive to the sentences imposed for the sexual assaults. On the remaining hindering counts, the Appellate Division imposed concurrent four-year terms with two-year parole disqualifiers concurrent to the terms imposed on the sexual-assault counts. Thus, defendant Yarbough's sentence was an aggregate of twenty-four years with twelve years of parole ineligibility.

With regard to defendant Smith, the Appellate Division reduced the sentence imposed for the aggravated sexual assaults to concurrent fifteen-year terms of imprisonment with concurrent

five-year parole disqualifiers. On the hindering-apprehension counts, the Appellate Division imposed one four-year term with a two-year parole disqualifer made consecutive to the aggravated-sexual-assault sentences. On the remaining hindering counts, the court imposed concurrent four-year terms with two-year parole disqualifiers concurrent to the terms previously imposed. Smith's sentence was an aggregate of nineteen years with seven years of parole ineligibility.

We granted the State's petition to review the question of consecutive-sentencing standards under the Code of Criminal Justice. 99 N.J. 195 (1984).

II

The paramount goal of sentencing reform was greater uniformity. State v. Roth, supra, 95 N.J. at 361. As noted, to that end, the Code channels the discretion of sentencing judges in fixing the terms of sentences for offenses under that Code. In State v. Roth, supra, 95 N.J. at 341-56, we reviewed in detail the development of the sentencing standards under the Code. In its structure, the New Jersey Code establishes a scheme of "presumptive sentencing." Under that scheme, the Legislature has broken crimes down into sub-categories, established degrees of severity, determined how much the presumptive first-offender's sentence would be increased for succeeding convictions, defined specific aggravating or mitigating factors, and provided 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.'" State v. Roth, supra, 95 N.J. at 355 (quoting the Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment 21 (1976) (emphasis in original) [hereinafter cited as Fair and Certain Punishment ]).

Our Code resembles a model for sentencing based on notions of proportionality and desert. The model has two main features:

first, the primary criterion for the severity of punishment is the gravity of the defendant's crime; second, sentencing discretion is regulated through standards that prescribe the quantum of punishment for different species of criminal conduct. For each gradation of seriousness, a normally-recommended sanction is set. Offenders convicted of crimes of that gravity will ordinarily receive that quantum of punishment. The Code requires the sentencing court to look at the individual offender in balancing the defined aggravating and mitigating factors (including the defendant's prior record, cooperation, or the likelihood of further criminal conduct) to determine the range of the sentence, a parole disqualifier, or an extended term. N.J.S.A. 2C:43-6a. and b. ; 2C:43-7; and 2C:44-1f. (The Graves Act, N.J.S.A. 2C:43-6c. and d., prescribes certain mandatory terms for defined weapons offenses.)

The Code does not define with comparable precision the standards that shall guide sentencing courts in imposing sentences of imprisonment for more than one offense. With certain narrow exceptions, see N.J.S.A. 2C:44-5b.(3), -5c., and -5h., the Code states only that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence". N.J.S.A. 2C:44-5a. In general, "discretionary powers conferred by the code shall be exercised in accordance with the criteria stated in the code and, insofar as such criteria are not decisive, to further the general purposes * * *" of the Code. N.J.S.A. 2C:1-2c.

There being no specific criteria stated in the Code, we must fashion standards for discretion that will best further the purposes of the Code.*fn3 Those purposes center upon the concept

that punishment of crime be based primarily on principles of deserved punishment in proportion to the offense and not rehabilitative potential, and that in dispensing that punishment, our judicial system should attain a predictable degree of uniformity. Our standard for imposing consecutive sentences should be consistent with those goals.

III

To place the problem in perspective, it is necessary to recall briefly the history of sentencing that we reviewed in State v. Roth, supra, 95 N.J. at 345-56. Under prior law, sentencing theory reflected the viewpoint that reformation and rehabilitation of offenders was a major goal of criminal sentencing. Under that mold, proponents of sentencing based on rehabilitation advocated a presumption in favor of concurrent sentencing to facilitate the reform of the defendant. The Legislature merely set maximum and minimum terms. The court would impose a sentence within the range and the basic decision, as to release of the prisoner, was left to the correctional and parole authorities. Concurrent sentencing increased the flexibility available to prison officials to determine prisoners' release dates based on rehabilitation.

By contrast:

A system of just deserts with an objective of allocational fairness must take the opposite approach. On retributive grounds, two offenses deserve a more severe sanction than one offense. The offender who commits two armed robberies should, all other things being equal, serve more time than the offender who commits one robbery. Concurrent sentences frustrate ...


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