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State v. Dunbar

Decided: July 7, 1987.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
KIM DUNBAR, DEFENDANT-RESPONDENT



On certification to the Appellate DIVISION, Superior Court.

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

O'hern

This case concerns the standards for imposing an extended term of imprisonment on a persistent criminal offender under N.J.S.A. 2C:43-7 and any effect that decision has on the discretionary power of the court to impose a period of parole ineligibility under N.J.S.A. 2C:43-7b.

Defendant was convicted of second-degree robbery, in violation of N.J.S.A. 2C:15-1. The offense was committed on April 22, 1983. Because he met the criteria for an extended term of imprisonment as a persistent offender under N.J.S.A. 2C:43-7, the defendant was exposed to a term of imprisonment between ten and twenty years, N.J.S.A. 2C:43-7a(3), with a presumptive term of fifteen years, N.J.S.A. 2C:44-1f, and exposure to a

maximum period of ten years imprisonment without possibility for parole under N.J.S.A. 2C:43-7b. The trial court imposed the presumptive sentence of fifteen years for a persistent offender convicted of second-degree crime, and added a period of seven years of parole ineligibility.

The Appellate Division agreed that the defendant was eligible to be sentenced as a persistent offender. However, it found the "imposition of a seven-year minimum term [of parole ineligibility] on a 22 year-old with an adult record of two prior indictable convictions for burglary * * * shocking," and therefore eliminated the parole disqualifier pursuant to its residue of power to revise sentences in situations in which the application of the sentencing guidelines of the Code to the facts of the case "makes the sentence clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). We granted the State's petition for certification to review the unreported decision of the Appellate Division. 105 N.J. 579 (1986).

A correctly articulated sentence at the mid-range of an authorized extended term, with a parole disqualifier, may strike us as a harsh sentence, but that is the consequence of the legislative scheme and not a clear error of judgment by the trial court. Although the trial court may not have articulated the reasons for its sentence in the same way that we state them here, we are satisfied that they are sufficiently in accord with the Code's sentencing guidelines to warrant sustaining the sentence. Accordingly, we reverse the judgment of the Appellate Division and reinstate the sentence.

I.

The history of sentencing repeat criminal offenders in American jurisdictions has been described in Kramer, "From 'Habitual Offenders' to 'Career Criminals,' The Historical Construction and Development of Criminal Categories," 6 Law and Human Behavior 273 (1982). In the 1920s and 1930s, reaction

to perceived weaknesses in the criminal justice system and the growing incidence of crime led many American jurisdictions to adopt habitual offender laws. Many, if not most, of these habitual offender statutes prescribed mandatory life imprisonment upon the third or fourth conviction.

Such measures proved to be more symbolic than substantive in the effort to reduce crime. They were rarely invoked and frequently subject to judicial challenge because of the discretion that they gave to the prosecutor alone to invoke the sanction. They also proved to produce unpredictable side effects on the plea bargaining process. See Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604, reh'g denied, 435 U.S. 918, 98 S. Ct. 1477, 55 L. Ed. 2d 511 (1978) (Court narrowly sustains plea bargaining conditioned on prosecutorial abandonment of claim of habitual offender status); see also Klein, "Habitual Offender Legislation and the Bargaining Process," 15 Crim. L. Quarterly 417, 426 (1973) (prosecutors more often use habitual offender laws as a bargaining tool to strengthen their positions in negotiations of pleas and sentences with defense attorneys (quoting Furgeson, "The Law of Recidivism in Texas," 13 McGill L.J. 663 (1967))).

In dissenting from the imposition of a life sentence for the theft by false pretenses of $120, Justice Powell traced the gradual replacement of the mandatory life sentence for the persistent offender with more discretionary or flexible schemes as a result of "a judgment that under some circumstances life imprisonment for an habitual criminal is not justified." Rummel v. Estelle, 445 U.S. 263, 297, 100 S. Ct. 1133, 1151, 63 L. Ed. 2d 382, 405 (1980) (citation omitted). He noted that at that time

[m]ore than three-quarters of American jurisdictions have never adopted a habitual offender statute that would commit the petitioner to mandatory life imprisonment. The jurisdictions that currently employ habitual offender statutes either (i) require the commission of more than three offenses, (ii) require the commission of at least one violent crime, (iii) limit a mandatory penalty to less than life, or (iv) grant discretion to the sentencing authority. [ Id. at 298, 100 S. Ct. at 1151, 63 L. Ed. 2d at 406 (footnotes omitted).]

Justice Powell's position carried the day in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), which held that the imposition of life imprisonment for a repeat, non-violent offense of uttering a $100 bad check so offended "[t]he principle that a punishment should be proportionate to the crime" that the sentence was held unconstitutional. Id. at 284, 103 S. Ct. at 3006, 77 L. Ed. 2d at 645.

Recognizing that untrammelled discretion was one of the principal vices of the sentencing process in American jurisprudence, and notwithstanding the difficulty in defining the outer limits of habitual offender sentencing patterns, most mid-century studies of the criminal justice system proposed giving courts graded discretion to sentence certain convicted offenders to a period beyond the ordinary statutory term for the offense if the defendant was found to be an habitual offender or meet other criteria. Note, "The Constitutionality of Statutes Permitting Increased Sentences for Habitual or Dangerous Criminals," 89 Harv.L.Rev. 356, 356 (1975). See Task Force on Criminal Sentencing, The Twentieth Century Fund, Fair & Certain Punishment 21 (1976) (in special circumstances a judge would be permitted to deviate from the presumptive range permitted by an ordinary finding of aggravating or mitigating factors); Task Force on the Administration of Justice, The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 15 (1967) ("An enlightened sentencing code * * * should ensure that long prison terms are available for habitual, dangerous, and professional criminals who present a substantial threat to the public safety * * *. Moreover, it should provide the courts and correctional authorities with sufficient flexibility to fix lengths of imprisonment which are appropriate on the facts of each case.").

The framers of the 1961 Model Penal Code sought to balance their intuitive awareness and the statistical evidence that a small number of repeat offenders were responsible for a disproportionate amount of crime, with the demands of justice that principled sentencing be related to the offense for which the

defendant stands convicted. Their examination of habitual offender laws during the drafting of the Model Penal Code led to the conclusion

that they are a failure, productive of chaotic and unjust results when they are used, and greatly nullified in practice. Their difficulty, in our view, inheres in four defects: first, they are mandatory wholly or in part in over half the jurisdictions; second, the extensions often are too long or appear arbitrary in their length, especially when they import long minima or otherwise exclude parole; third, the extension, especially when it involves life sentence, takes inadequate account of the gravity of the offense of last conviction for which the sentence is imposed; and fourth, the extension rests entirely upon prior record and takes no account of other types of special danger that particular offenders may present. [ Model Penal Code and Commentaries (Official Draft and Revised Comments) ยง 6.07 comment at 172 (1985) (MPC) (quoting Wechsler, "Sentencing, Correction, and the Model Penal Code," 109 U.Pa.L.Rev. 465, 483 (1961)).]

The core dissatisfaction derived from the sense of injustice that occurs when major criminal penalties are imposed upon conviction of a minor offense. To remedy these shortcomings, the drafters of the Model Penal Code established three major premises: (1) the length of the extended term should be limited by the seriousness of the crime for which the offender presently stands convicted; (2) the precise contours of the sentence always should remain primarily within judicial control; and (3) the conduct that is the occasion for sentence should control the severity of the sentence. Id. at 175, 176, 177.

As we shall see, New Jersey's Code of Criminal Justice, with certain modifications, essentially tracks this scheme. Obviously, a scheme of "two-tiered" or "desert-oriented" sentencing presents some conflict for a system premised on the "just deserts" philosophy of sentencing.*fn1 von Hirsch, "Desert and Previous Convictions in Sentencing," 65 Minn.L.Rev. 591 (1981). "The issue of prior ...


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