On certification to the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Stein, J.
[105 NJ Page 401] In this case, and in State v. Hartye, 105 N.J. 411 (1987), which we also decide today, we are called on to determine the proper relationship between a term of imprisonment imposed as a condition of probation, N.J.S.A. 2C:43-2b(2), and the presumptions
of incarceration contained in N.J.S.A. 2C:44-1d and -1e. Specifically, the issue in this case is whether the "split sentence" authorized by N.J.S.A. 2C:43-2b(2) may be imposed on a defendant who has pled guilty to a second-degree offense, which normally carries a presumption of imprisonment. Because we conclude that such a sentence is invalid under our Code of Criminal Justice, we reverse the judgment of the Appellate Division, and remand the matter to the trial court for disposition in accordance with this opinion.
This case arises out of defendant's plea of guilty to a charge of aggravated arson, a second-degree offense under N.J.S.A. 2C:17-1a. Defendant's indictment on this charge was the result of an incident that occurred in November 1984, when he set fire to his employer's place of business. In the plea agreement, the State agreed to recommend that defendant "be sentenced as a 3rd degree offender, if custodial not to exceed 4 years, court to set amount of restitution."
At the sentencing hearing, the court sentenced defendant to a three-year probationary term. Additionally, he was required to serve fifteen consecutive weekends in the Middlesex County Adult Correction Center, and to make restitution to his former employer in the amount of $5,000. In the event defendant failed to make restitution within three years, the period of probation was to be extended for two years.*fn1
In its statement of reasons, the court found as aggravating factors the nature of the offense, N.J.S.A. 2C:44-1a(1), and the need for deterrence, N.J.S.A. 2C:44-1a(9). It listed as mitigating factors defendant's payment of compensation to the victim, N.J.S.A. 2C:44-1b(6), and his lack of a prior record, N.J.S.A. 2C:44-1b(7). Significantly, the court made an express finding that the presumption of non-incarceration of N.J.S.A. 2C:44-1e
applied to this case because of the stipulation that defendant was to be sentenced as a third-degree offender, and because this was a first offense. However, the fifteen-weekend term of imprisonment was imposed because "the serious nature of the crime" was found to overcome the presumption of non-imprisonment.
The State appealed, contending that the sentence was inconsistent with the sentencing provisions of the Code of Criminal Justice. The Appellate Division affirmed the trial court in an unpublished opinion. The court held that the presumption of imprisonment of N.J.S.A. 2C:44-1d was applicable, but concluded that the fifteen-weekend prison term, imposed as a condition of the probationary sentence, satisfied the statutory presumption. It therefore concluded that the sentence imposed was proper under the sentencing provisions of the Code.
In its opinion, the Appellate Division relied on State v. Jones, 197 N.J. Super. 604 (App.Div.1984), which held that a probationary sentence carrying a prison term as a condition was authorized under the Code, even though the presumption of incarceration was applicable. Id. at 608-09. However, two other panels have since reached the opposite conclusion, holding that such a sentence is illegal. State v. Whidby, 204 N.J. Super. 312 (App.Div.1985); State v. Kreidler, 211 N.J. Super. 276 (App.Div.1986). We granted certification, N.J. (1986), in order to resolve this conflict.
A threshold issue in this case is whether the presumption of imprisonment, N.J.S.A. 2C:44-1d, or the presumption of non-imprisonment, N.J.S.A. 2C:44 -- 1e, determines the legality of defendant's sentence. Under the Code, all persons convicted of a first- or second-degree crime are to be sentenced to a term of imprisonment, absent a showing that incarceration would work a "serious injustice * * * ...