On certification to the Superior Court, Appellate Division.
For Affirmance and modification -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.
Defendant, Gloria Jarbath, is a mentally retarded twenty-one year old woman who has also been diagnosed as psychotic. She was charged with the knowing murder of her nineteen-day-old son. She pleaded guilty to a reduced charge of second-degree manslaughter. When she entered her guilty plea, defendant stated on the record that the baby had died after she twice accidentally dropped him on a coffee table. The prosecution did not contest this version of the offense. In accordance with the plea agreement, she was sentenced by the trial court to an indeterminate custodial term not to exceed seven years.
Defendant thereafter filed an appeal challenging her custodial sentence, claiming that the sentence was invalid and an abuse of discretion. She also presented information on appeal that indicated that she had been severely abused in prison; there were incidents of abuse of the defendant by other inmates that occurred almost daily, and in fact, a beating had taken place the day before sentencing while defendant was in custody. Further, she had attempted to commit suicide. The Appellate Division determined that this information required further development and consideration,*fn1 and relisted the matter, asking defense counsel to make two inquiries: (1) whether defendant
was receiving proper treatment or care in prison; and (2) whether there was inpatient or outpatient care available in the community that would both "protect the public and do [defendant] good."
On rehearing, the Appellate Division inquired into the facts surrounding the offense itself in response to which the prosecutor presented another version by proffering evidence that the autopsy report showed the child had been beaten and had not died accidentally. The court was unable to resolve exactly what caused the child's death, but nevertheless decided to vacate the trial court's sentence as an abuse of discretion, finding that it would be a "serious injustice" to imprison defendant since imprisonment did not appear to function as a deterrent to Ms. Jarbath because of her retardation. The court concluded that as long as she was not a danger to the community and could get adequate care through placement in supervised educational, vocational, and recreational programs for the mentally retarded, prison was not the appropriate setting for her. Accordingly, the Appellate Division resentenced defendant as a third-degree offender with a five-year probationary term conditioned on: (1) receipt of psychiatric care; (2) participation in an Association of Retarded Citizens Program; (3) regular reporting to the Probation Department; (4) residence with family members; and (5) not living with any child under five years of age in the same house.
The State filed a petition for certification, which we granted. 110 N.J. 160 (1988). The question presented by the State's petition is whether the Appellate Division erred (1) in requesting the additional information concerning defendant's custodial treatment and experience, and (2) in resentencing defendant based on that information, although, as noted, the Appellate Division also considered the nature of the offense and defendant's mental condition in determining to impose a new sentence on the defendant. We thus address the broad question of the scope of the appellate court's power to review sentences, including specifically the scope of appellate original jurisdiction
when it is exercised in conjunction with its power to review sentences.
Our analysis must commence with State v. Roth, 95 N.J. 334 (1984). There the Court revisited the question of appellate courts' power of review of sentences in light of the "entirely new sentencing process" established by the New Jersey Code of Criminal Justice under N.J.S.A. 2C:1-1 to 98-4. Id. at 340. The Code set new limits on the discretionary power of sentencing courts by displacing standards established under prior decisional law and creating presumptive terms of imprisonment correlated to the severity of the crime itself. Ibid.
The goal of the Code was to establish uniformity by both structuring and standardizing the sentencing courts' discretion. The sentencing structure encompasses the gradation of crimes according to severity, expressed as a "degree." According to the degree of severity there is either a presumption of incarceration or a presumption of non-incarceration. The presumptive term of imprisonment is specified as a particular number of years, which can be increased or reduced within a maximum and minimum term of years. Standards -- aggravating and mitigating factors -- guide judicial discretion in determining the duration of custodial sentences within the range. These factors can also serve to obviate entirely a presumptive term of incarceration or, conversely, to overcome a presumption of non-incarceration and permit the imposition of a prison term. In addition, these factors are relevant with respect to other sentencing considerations, such as prescribing terms of parole ineligibility or downgrading the severity of the offense for sentencing purposes. Id. at 359.
The Court foresaw a central role to be played by appellate courts in effectuating this sentencing scheme and promoting uniformity and consistency. Id. at 361. The new approach envisages an important function for appellate courts in clarifying
relevant standards, promoting consistent interpretation of sentencing guidelines, and enhancing uniformity in the application of statutory standards to similar facts under similar circumstances. Ibid.
The Roth opinion set forth the structure and standards according to which an appellate court would perform this function. The critical focus of the appellate power to review and correct sentences is on whether the basic sentencing determination of the lower court was "clearly mistaken." This could occur (1) if the sentencing guidelines were not followed or applied; (2) if the aggravating and mitigating factors found by the sentencing court were not based on sufficient evidence in the record; and (3) if, even though the sentence falls within the guidelines on the basis of factors supported by adequate evidence, the application of the guidelines to the facts of the particular case renders the sentence clearly unreasonable so as to "shock the judicial conscience." Id. at 364-65. Thus, the appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts. Id. at 364. At the same time, the appellate courts are adjured not to exercise their own sentencing discretion or to substitute their own judgment but to determine only whether or not the sentencing court was "clearly unreasonable." "What we seek by our review is not a difference in judgment, but only a judgment that reasonable people may not reasonably make on the basis of the evidence presented." Id. at 365.
In light of this structured approach to the appellate power to review sentences, the first step that must be taken by an appellate court is to examine whether the sentencing court followed and applied the correct sentencing guidelines. Here, the defendant was convicted of second-degree manslaughter under N.J.S.A. 2C:11-4, which calls for a presumptive term of seven years, with a minimum and maximum limit of five and ten years respectively. N.J.S.A. 2C:44-1f(c); N.J.S.A. 2C:43-6a(2). The trial court, however, chose yet another sentencing
option. It sentenced defendant to an indeterminate term not to exceed seven years, pursuant to the youthful-offender statute, N.J.S.A. 2C:43-5, which remains available as a sentencing alternative for eligible youthful offenders. State v. Des Marets, 92 N.J. 62, 75 (1983). When courts impose custodial sentences pursuant to the youthful-offender statute, they may not impose a term longer than five years unless there is "good cause shown," in which case the five-year maximum can be increased but in no event can it exceed the maximum term otherwise provided by law for the particular crime. N.J.S.A. 30:4-148. In this case, the court made a decision to extend the five-year maximum term, from which it may be inferred that it had determined there was "good cause" for such an extension. It may further be inferred that the trial court's determination that there existed "good cause" to justify the extension was based on a Code analysis involving the weighing of statutory aggravating and mitigating factors, since the court expressly referred to these factors. Because the Code's aggravating and mitigating factors are clearly probative of those elements that are most relevant to sentencing, we conclude that the court properly considered such factors in exercising its sentencing discretion under the youthful-offender statute. See State v. Sainz, 107 N.J. 283 (1987) (sentencing provisions of the Code prescribing the aggravating and mitigating factors are generally applicable to sentences imposed under Controlled Dangerous Substance Act, N.J.S.A. 24:21-1 to -20 (amended by N.J.S.A. 2C:35-1 to -23)). We thus find no mistaken exercise of discretion in the court's initial or basic approach to sentencing.
The succeeding inquiry is whether the trial court failed to adduce sufficient evidence to support its findings with respect to aggravating and mitigating factors or failed to exercise sound discretion relating to the weighing of aggravating and mitigating factors. The sentencing court in this case found the following aggravating factors "marginally applicable":
(1) the nature and circumstances of the offense and the role of the defendant therein, including whether or not the crime was committed in an especially heinous, cruel or depraved manner;
(2) the gravity and seriousness of harm inflicted to the victim, including whether the defendant knew or reasonably should have known the victim of the offense was particularly vulnerable and/or incapable of resisting due to her age; and
(3) the need to deter the defendant and others from violating the law.
These coincide with the factors enumerated under N.J.S.A. ...