On appeal from Superior Court, Law Division, Monmouth County.
Furman, Shebell and Stern. The opinion of the court was delivered by Stern, J.A.D.
The State appeals from a noncustodial probationary sentence imposed after defendant pled guilty to sexual assault, N.J.S.A. 2C:14-2b, as part of a negotiated plea involving a downgrade from second degree to third degree for purposes of sentencing. Other counts of the indictment were dismissed. At the time of the plea, defendant admitted touching the breasts and vagina of the victim on various occasions while she was between the ages of 7 and 11 and he was between 22 and 25.
N.J.S.A. 2C:44-1f(2) 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. If the court does impose
sentence pursuant to this paragraph, or if the court imposes a noncustodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution. [Emphasis added]
N.J.S.A. 2C:44-1f(2) permits an appeal by the State from a noncustodial or probationary sentence imposed for crimes of the first or second degree whether or not the sentence is imposed on downgrade. The negotiated recommendation of downgrade for sentencing purposes does not prevent the State's appeal, as defendant contends. The State is precluded from appealing a noncustodial or probationary sentence imposed on a first or second degree crime, as part of the recommendation for downgrade, only when it recommended the sentence imposed or a lesser sentence, waived its right to take a position at sentencing, or waived its right to appeal. See State v. Ferrara, 197 N.J. Super. 1, 2 (App.Div.1984); State v. Paterna, 195 N.J. Super. 124 (App.Div.1984). Here, however, the State did not recommend a maximum sentence, and the judge after downgrade did not impose a sentence within the range for a third degree crime, N.J.S.A. 2C:43-6a(3). The above quoted statute, N.J.S.A. 2C:44-1f(2), permits an appeal by the State from a probationary sentence (including one with a condition involving imprisonment of up to 364 days, N.J.S.A. 2C:43-2b(2); 2C:45-1c or a noncustodial sentence, and the State can argue that notwithstanding its recommendation for downgrade, it nevertheless expected that the custodial sentence imposed would be within the range for a third degree crime. On downgrade from second to third degree, a four year custodial term is the "presumptive" sentence. See N.J.S.A. 2C:44-1f(1).
The presumption against imprisonment does not apply on the downgrade from second to third degree for sentencing purposes. State v. Rodriguez, 179 N.J. Super. 129 (App.Div.1981). Rather, the presumption of imprisonment embodied in N.J.S.A. 2C:44-1d applies because the defendant remains "convicted" of a second degree crime when sentenced as a third
degree offender under N.J.S.A. 2C:44-1f(2). N.J.S.A. 2C:44-1d provides:
Presumption of imprisonment. The court shall deal with a person who has been convicted of a crime of the first or second degree by imposing a sentence 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.
See State v. Kreidler, 211 N.J. Super. 276, 277 (App.Div.1986). See also State v. Hodge, 95 N.J. 369 (1984); State v. Roth, 95 N.J. 334 (1984); State v. Gerstofer, 191 N.J. Super. 542 (App.Div.1983), certif. den. 96 N.J. 310 (1984). As the trial court did not consider the presumption of imprisonment or find it was overcome, we must remand for resentencing. We anticipate that the trial court may consider imposition of a probationary sentence with a custodial aspect ...