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.
This case requires the Court to focus on the standards for determining whether separate offenses must merge upon conviction and those determining whether consecutive sentences may be imposed on unmerged offenses. Specifically, we must resolve whether defendant's convictions for aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and child endangerment, N.J.S.A. 2C:24-4a, should merge, and if merger is not required, whether consecutive sentences for these offenses may be imposed. The trial court found that merger of these convictions was inappropriate, and ordered consecutive sentences for the two offenses. Deciding that merger was required, the Appellate Division reversed and vacated the consecutive sentence for endangering the welfare of a child. Because we disagree with the Appellate Division's decision to merge the offenses, we reverse. However, due to the absence of an adequate statement of reasons for the trial court's decision to sentence consecutively, we cannot reinstate the sentence vacated by the Appellate Division decision. We therefore remand for resentencing.
The incidents leading to the convictions in this case occurred in April 1984. During a weekend of visitation, the defendant sexually assaulted his five-year-old daughter. The offensive conduct first occurred in the course of a card game during which both the victim and her father shed their clothing. The defendant then proceeded to assault his daughter, performing several sexual acts upon her. The defendant also induced his daughter to play another sexual "game" later in the weekend.
On the basis of in-court testimony by the victim, a jury convicted the defendant of two counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(1); one count of sexual assault, in violation of N.J.S.A. 2C:14-2b; one count of endangering the welfare of a child, in violation of N.J.S.A.
2C:24-4a; and one count of child abuse, in violation of N.J.S.A. 9:6-3.
At sentencing, the trial court merged the sexual assault count into the aggravated sexual assault convictions, and merged the child abuse conviction into the conviction for endangering the welfare of a child.*fn1 The court sentenced the defendant to concurrent sentences of twenty years with ten years of parole ineligibility on the aggravated sexual assault counts. The sentence was to be served at the Adult Diagnostic and Treatment Center at Avenel. A $1000 penalty was also imposed. For endangering the welfare of his child, the defendant was sentenced to a consecutive term of five years at Avenel with a two-and-one-half year parole disqualifier. He was also assessed a $500 penalty.
In support of this sentence, the court found that the aggravating factors substantially outweighed the mitigating factors. The court found no mitigating factors whatsoever. The following aggravating factors were noted: the defendant had a substantial prior record, including a previous sex offense with a child; the nature and circumstances of the case were "terrible;" the seriousness of the harm inflicted on the victim was "extraordinary;" there was a high risk that the defendant would commit another offense creating a particular need for deterrence; and a lesser sentence would depreciate the seriousness of the offense. However, no specific reasons were given, as required by State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), for imposing consecutive rather than concurrent sentences.
In an unreported opinion, the Appellate Division reversed. After raising the issue sua sponte, and requesting supplemental
briefs, the court found that the convictions for aggravated sexual assault and endangering the welfare of a child should have merged. Accordingly, the five-year sentence for endangering the welfare of a child was vacated.
Merger is based on the principle that "an accused [who] has committed only one offense * * * cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). Merger implicates a defendant's substantive constitutional rights. State v. Truglia, 97 N.J. 513, 522 (1984); State v. Rodriguez, 97 N.J. 263, 271 (1984); State v. Davis, supra, 68 N.J. at 77. The analysis is similar to a double jeopardy analysis. State v. Mirault, 92 N.J. 492, 501 (1983). Slightly different interests are involved, however. In double jeopardy cases the defendant seeks to avoid both multiple prosecution and multiple punishment; in merger cases, only multiple punishments are at issue.
The first step is to compare the statutes defining the offenses at issue. As this Court stated in Davis,
[w]e start with the proposition that what is disallowed is double punishment for the same offense. Since it is the legislative branch that defines the unit of prosecution or "offense" and ordains its punishment, we must first determine whether the legislature has in fact undertaken ...