On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, Stein. Opposed -- none. The opinion of the Court was delivered by Pollock, Justice.
This appeal questions the interrelationship between the presumptive sentencing and parole ineligibility provisions of the Criminal Code. Specifically, the issue is whether the Law Division erred in imposing a period of parole ineligibility under N.J.S.A. 2C:43-6b, without increasing the presumptive sentence beyond that provided by N.J.S.A. 2C:44-1f. The Appellate Division affirmed in an order entered as part of the "excessive sentence oral argument" program. We granted certification, 103 N.J. 485 (1986), and now reverse and remand the matter to the Law Division.
On May 21, 1980, the mother of defendant, Richard Kruse, was taken to the hospital where she eventually died from cancer. Shortly before her death, Mrs. Kruse requested defendant, who had a close relationship with her, to bring her wedding ring to the hospital. Defendant was unable to comply with that request because the family home was burglarized on
May 21, and the wedding ring was stolen. Defendant came into possession of facts indicating that the victim, Richard Kramer, was the thief, but shortly thereafter Kramer left the state and defendant did not see him again until August 1983. On August 19, defendant saw Kramer, went home, picked up a baseball bat, and located Kramer on a street in Riverdale. Although there is some uncertainty about the ensuing facts, defendant struck Kramer on the head with the bat, killing him. Defendant fled to Canada, but later returned voluntarily and surrendered to the police.
Thereafter, defendant was indicted for murder, N.J.S.A. 2C:11-3a(2), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. Pursuant to a plea agreement entered at trial, defendant retracted his plea of not guilty and pled guilty to first-degree aggravated manslaughter. As part of the agreement, the State agreed to dismiss the charge of unlawful possession of a weapon and to recommend that any sentence be served at Yardville. No agreement was made regarding the sentence.
At sentencing, the prosecutor asked the court to sentence the defendant to a term of twenty years with ten years of parole ineligibility. The trial judge began by stating that a custodial sentence was appropriate and that the presumptive sentence was fifteen years unless the preponderance of aggravating factors outweighed the mitigating factors. With respect to the aggravating factors, the court characterized the "nature and circumstances of the offense" as "unusual" and "heinous." The court noted that the act "was done also against a person who was unarmed and a victim who was absolutely in an indefensible position; inebriated to a certain point * * *." Concerning the mitigating factors, the court observed that this was the defendant's first offense and "that there is no evidence to show that he would ever do anything like this again. I think truly it was unusual circumstances." The court continued: "Nevertheless, the way it was done and the way the act came about itself leaves some doubt as to whether or not any future,
[sic] any future actions on [sic] the defendant would be caused by an emotional rush of anger. Those are certainly strong aggravating circumstances." The judge concluded his remarks by stating that the defendant "on the mitigating side * * * has no prior record and he's young. Those mitigating factors, however, are not even close to the aggravating factors that existed in this case." Without setting forth any reasons, the court sentenced defendant to the presumptive term of fifteen years, with a seven-year period of parole ineligibility. Although the State conceded at the excessive sentence oral argument that it would not object to a remand for clarification, the Appellate Division entered an order affirming the sentence.
Our analysis begins with State v. Roth, 95 N.J. 334 (1984), in which we outlined three steps in sentencing a criminal defendant. First, the trial court must determine whether incarceration is appropriate, keeping in mind the presumption of imprisonment created by N.J.S.A. 2C:44-1(d). State v. Roth, supra, 95 N.J. at 358. Second, the court must decide on the appropriate sentence. ...