On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Brody and Muir, Jr. The opinion of the court was delivered by Brody, J.A.D.
Defendant pled guilty to third-degree death by auto. N.J.S.A. 2C:11-5. The trial judge found that he had been operating a motor vehicle while under the influence of intoxicating liquor when the accident occurred. That finding invoked the provision of N.J.S.A. 2C:11-5b (the statute) that "any sentence imposed under this section shall include either a fixed minimum term of 270 days' imprisonment, during which the defendant shall be ineligible for parole, or a requirement that the defendant perform a community related service for a minimum of 270 days." The judge imposed a prison term of 4 years, the presumptive term for a third-degree crime, with 270 days of parole ineligibility. Defendant contends that the sentence did not conform to statutory guidelines and is excessive.*fn1 We agree that the trial judge did not follow statutory sentencing guidelines, and we outline the proper approach when imposing a sentence under the statute.
The trial judge evaluated the sentencing factors as follows:
I do find that the mitigating circumstance, the fact that you've had no prior criminal record, and I do find that the character and attitude indicate that you are unlikely to commit another offense, and that you could possibly respond affirmatively to probationary treatment. But, that mitigating circumstance is not sufficient to outweigh in this case the fact that there was the death of the victim. I can't agree that imprisonment would entail excessive hardship on you or your dependents, based on the information in front of me. And I do find that there was a willingness on your part to cooperate with the authorities. But those mitigating circumstances that I do find, and I agree with [defendant's attorney] on, again are not sufficient to overcome the basic aggravating circumstance in this case, the fact that there is a death. And that's the reason for the sentencing, and of course, as I say, I found that you were under the influence, and that is the reason for the minimum parole date.
The trial judge's determinative emphasis on the fact that defendant's reckless conduct resulted in a death was misplaced.
All defendants being sentenced for death by auto caused a death by the reckless operation of their vehicle. N.J.S.A. 2C:11-5. Where, as here, the victim's death is an element of the crime, his death may not be used as an aggravating factor when imposing sentence. State v. Pavin, 202 N.J. Super. 255, 266 (App.Div.1985). We must therefore remand for resentencing.
We offer trial judges guidance when sentencing under N.J.S.A. 2C:11-5b because the statute, read literally, requires sentencing judges to choose without guidance between a mandated minimum term of 270 days' imprisonment without parole or 270 days' community related service. The statute provides:
Death by auto is a crime of the third degree and, notwithstanding the provisions of 2C:43-2, the court may not suspend the imposition of sentence on any defendant convicted under this section, who was operating the vehicle under the influence of an intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, and any sentence imposed under this section shall include either a fixed minimum term of 270 days' imprisonment, during which the defendant shall be ineligible for parole, or a requirement that the defendant perform a community related service for a minimum of 270 days.
We do not believe that the Legislature intended that judges must choose between such disparate minimum sentences.
One of the Legislature's major concerns in enacting Title 2C was to bring about a greater uniformity in sentencing. State v. Roth, 95 N.J. 334, 361 (1984). That goal is to be attained through application of the general sentencing strictures and guidelines found in Subtitle 3, the sentencing subtitle of the Code. N.J.S.A. 2C:43-1 to N.J.S.A. 2C:51-3. The general rule is that unless ". . . otherwise provided by this code, all persons convicted of an offense or offenses shall be sentenced in accordance with this chapter." N.J.S.A. 2C:43-2a.
Applying that mandate to sentences imposed under N.J.S.A. 2C:11-5b requires the judge to arrive at the sentence in two steps. The judge must first determine a tentative sentence that comports with the strictures and guidelines that the Code ...