On certification to the Superior Court, Appellate Division.
For modification and reinstatement -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. Opposed -- None.
[114 NJ Page 384] In State v. Roth, 95 N.J. 334 (1984), we assured our trial judges that when they "exercise discretion in accordance with the principles set forth in the Code and defined by us * * *,
they need fear no second-guessing." Id. at 365. This appeal and cross-appeal test the measure of that commitment.
On defendant's guilty plea to various property crimes the sentencing court imposed two consecutive five-year terms with two-and-one-half year periods of parole ineligibility. Hence the aggregate sentence was ten years, with a five-year parole disqualifier. On appeal the Appellate Division, in an unreported opinion, modified the sentence to remove its "consecutive" aspect and to make the terms run concurrently. The aggregate sentence was thus reduced to five years, with a two-and-a-half years parole-ineligibility term. We reinstate the original sentence.
Defendant, Jonathan Ghertler, was named in four separate indictments containing a total of sixteen counts charging burglary, attempted theft, criminal mischief, theft by deception, passing bad checks, forgery, and conspiracy. Under an agreement reached with the State, defendant pleaded to six of the sixteen counts -- five charging third-degree offenses, and one charging forgery, a fourth-degree offense. In return, the State agreed to dismiss the remaining counts. The four indictments were treated in two groups based on similarity of the offenses charged, the agreement being that the two groups of sentences would run concurrently within the same group. However, because the crimes were dissimilar as between the two groups, the agreement left to the trial court's discretion the question of consecutive terms for those discrete groups. In addition, the State gave up its right to seek an extended term but reserved its right to recommend a parole disqualifier. Defendant was told that he faced ten years, and at the plea hearing it was explained to him that the maximum potential term was twenty-six and one-half years with the possibility of a thirteen-and-one-half-year period of parole ineligibility.
Satisfied that the defendant understood his sentence exposure, the trial court imposed sentence in keeping with the plea agreement, namely, two consecutive five-year terms with two-and-one-half-year periods of parole ineligibility on each, for a total of ten years with a five-years parole disqualifier. The court stated on the record its reasons for the base sentences and the parole-ineligibility feature. It was clearly convinced that the aggravating factors -- the risk that defendant would commit another offense and the extent of his criminal record (four counts of theft in 1982, forgery in the same year, forgery and theft by deception in that same year, receiving stolen property and burglary and theft in 1983, a violation of probation in 1984 for which he served jail time and thereafter became a fugitive) -- substantially outweighed the mitigating factors. The court, recognizing that defendant was only twenty-four years old, believed that he could be rehabilitated "over a long term." Equally meticulously, the court set forth its reasons for imposing two consecutive five-year terms, emphasizing the independent, separate nature of the unrelated offenses, the difference and separateness of the times and places of their occurrence, and the fact that a number of victims were involved.
Defendant appealed, alleging that his sentence was excessive. The appeal first went through the Appellate Division's Excessive Sentence Oral Argument process, with the result that the court issued an order modifying defendant's sentence by removing the "consecutive" aspect, leaving a five-year term with two and one-half years of parole ineligibility. We granted the State's petition for certification, 108 N.J. 654 (1987), and summarily remanded to the Appellate Division for a statement of reasons for its ruling that the sentences be served concurrently rather than consecutively.
The statement of reasons found in the Appellate Division's opinion following the remand started with an acknowledgement that "the trial judge had properly applied the appropriate factors to arrive at a proper custodial term." The court held,
however, that despite defendant's substantial criminal record, "the imposition of a long term with a 5-year minimum on a 24-year-old who never received a significant custodial sentence was so clearly unreasonable as to shock the judicial conscience."
Because we had retained jurisdiction of the State's appeal challenging the modification of the sentences from consecutive to concurrent, the matter returned to this Court following the remand proceedings. We thereafter granted defendant's cross-petition for certification, 110 N.J. 178 (1988), seeking to erase the parole-ineligibility feature of the sentence. On the State's appeal we modify the judgment below and reinstate the consecutive sentences; on defendant's cross-appeal we affirm.
Resolution of the issues before us does not call for extended treatment, nor need we restate all the basic governing principles of sentencing under the Code of Criminal Justice, set forth in State v. Roth, supra, 95 N.J. 334. Our focus is narrow, given the questions presented in the respective petitions for certification: the propriety of a period of parole ineligibility and of consecutive sentences as components of defendant's aggregate sentence.
Before addressing those questions directly, we iterate the standard for appellate review of sentencing determinations. The authority for appellate review is provided by statute:
Any action taken by the court in imposing sentence shall be subject to review by an appellate court. The court shall specifically have the authority to review findings of fact by the sentencing court in support of its findings of aggravating and mitigating circumstances and to modify the defendant's sentence upon his application where such findings are not fairly supported on the record before the trial court. [ N.J.S.A. 2C:44-7.]
For a statement of the manner in which that authority should be exercised we turn to Roth, which tells us that
appellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines * * * have been followed; second, whether there is substantial ...