On certification to the Superior Court, Appellate Division.
For remandment -- Handler, Clifford, Pollock, O'Hern, Garibaldi and Stein. Wilentz, C.J., did not participate. Opposed -- None. The opinion of the Court was delivered by Handler, J.,
[115 NJ Page 560] The defendant, Janet Pillot, appeals what she considers to be an excessive and unfair sentence imposed by the Superior Court, Law Division, Passaic County. When she filed her appeal in the Appellate Division, she challenged this sentence as well as another that had been imposed shortly before by the Superior Court, Law Division, Bergen County. The sentences covered a series of similar crimes committed by defendant in both counties. During the oral argument before the Appellate
Division, defendant contended that the sentences were invalid because they were excessive and also because there was an "unjustified, gaping disparity" between them that should have been avoided by consolidation of the sentencing proceedings. The Appellate Division rejected these arguments and upheld the sentences.
The defendant now limits her challenge only to the validity of the longer of the two sentences, that imposed by the court in Passaic County. She contends not only that this sentence is excessive, but also that it is "disparate" when compared to the Bergen County sentence, and that she should have been sentenced on all of the underlying crimes in a single proceeding. The appeal thus presents initially the issue whether sentencing guidelines were properly applied by the sentencing court on an adequate record. Further, it poses the broader issue of the validity and adequacy of current procedures relating to the consolidation and joinder of sentencing proceedings.
Within a period of approximately nine weeks, Janet Pillot, then twenty-three years old, engaged in six armed robberies. The first two were committed in Passaic County on February 24 and April 4, 1986. The next three occurred on April 10 and 17 in Bergen County, and the sixth on April 26 in Passaic County. All of these offenses were similar. The defendant and a male companion would drive through a parking lot, usually in a shopping area, and park their car. Defendant would leave the car and approach a female in the parking lot. Using an unloaded BB gun, defendant would demand the victim's money at gunpoint. On completing the robbery, defendant and her cohort would flee the scene. Defendant was indicted in Bergen County on ten counts and in Passaic County on twelve counts for these crimes, the charges encompassing armed robbery, weapons offenses, and automobile theft.
On July 29, 1986, defendant appeared in Superior Court, Law Division, Bergen County. She retracted her previous plea of not guilty and entered a plea of guilty to three counts of first-degree robbery in exchange for the State's recommendation of a thirty-year maximum term, limiting the Graves Act exposure to ten years, and dismissal of the remaining counts.
Before she was sentenced in Bergen County, defendant appeared in Superior Court, Law Division, Passaic County. She entered a plea of guilty to three counts of first degree robbery in exchange for the State's recommendation that any custodial sentence imposed not exceed twenty-years imprisonment, with a possible ten-year period of parole ineligibility, to run concurrently with any sentence imposed on the conviction in Bergen County, and dismissal of the remaining counts of the indictment.
Defendant then appeared for sentencing in Bergen County and argued for the imposition of concurrent terms, with a presumptive sentence of fifteen years and five years parole ineligibility. The court imposed this sentence, along with the payment of violent-crime penalties. It considered as aggravating factors the nature of the offense, the risk that defendant might commit another offense, and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(1), (3), (9), and further noted that the seriousness of the crime triggered a presumption of imprisonment under N.J.S.A. 2C:44-1d. The court found as mitigating factors that defendant had no prior criminal record and, in light of her confession, that she had cooperated "to a certain extent" with law-enforcement authorities. The court further reasoned that although there were similar charges pending in another jurisdiction, Passaic County, this was defendant's first offense, that her employment record evidenced her willingness to work, and that the offenses occurred within a short span of time. The court determined that the aggravating factors did not outweigh the mitigating factors, justifying the imposition of the presumptive term and
the minimum period of parole ineligibility under the Graves Act: fifteen years and five years parole ineligibility.
Following the imposition of sentence in Bergen County, defendant was sentenced in Passaic County on October 3, 1986. The court was unconvinced that there were any mitigating factors referable to her age, the absence of a criminal record, or her cooperation with the authorities; it also noted statements made by three of the victims indicating their continuing emotional distress resulting from these crimes. The court found: "[u]nder [ N.J.S.A. ] 2C:44-1, aggravating circumstances, Sections 1, 3, 6, and 9. Mitigating circumstances, none." Because the offenses were crimes of the first degree and, along with the similar offenses in Bergen County, constituted a continuing pattern of criminal conduct, the court concluded that defendant was a danger to the community, warranting the maximum sentence. The court further noted that the recommended sentence was within the terms of the negotiated plea agreement. Accordingly, the court sentenced defendant to three concurrent twenty-year custodial terms with ten years of parole ineligibility, and ordered payment of restitution and violent-crime penalties.
As noted, defendant originally appealed both sentences. These were affirmed by the Appellate Division, which found no abuse of discretion by the court below, but rather that "[defendant] got exactly what she bargained for in this case." We granted defendant's petition for certification. 110 N.J. 301 (1988). She now challenges only the Passaic County sentence on grounds of excessiveness attributable to a misapplication of sentencing guidelines and unfairness because of disparity.
For each of the crimes committed in Passaic County, defendant received the maximum sentence possible for a first-degree armed robbery committed with a gun, namely, a twenty-year term with a ten-year period of parole ineligibility. She contends
initially that this sentence, although within the statutory limits, was an abuse of discretion because the sentencing court did not follow or properly apply the sentencing guidelines of the New Jersey Code of Criminal Justice, and that as a result, the sentence is excessive and arbitrary.
Appellate courts are extremely deferential in their review of a trial court's exercise of sentencing discretion. State v. Ghertler, 114 N.J. 383 (1989). We are guided in our review of the sentence by a three-pronged test enunciated in State v. Roth, 95 N.J. 334, 363-64 (1984). Appellate review of a sentencing decision requires a determination of whether the appropriate sentencing guidelines were followed, whether there was sufficient evidence to support the sentencing court's finding of fact, and "whether in applying those guidelines to the relevant facts the [sentencing] court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." Id. at 366.
The sentencing court found several aggravating factors. In finding the aggravating factor of N.J.S.A. 2C:44-1a(1), the court mentioned that the offense was particularly heinous because a gun was used to rob unsuspecting people. As defendant points out, however, pursuant to N.J.S.A. 2C-15-1b, the use of the unloaded BB gun elevated the robbery offense from a second-degree offense to a crime of the first degree and, as such, the severity of the criminal conduct through the use of a gun has been factored into the offense with which defendant is charged. Hence, the court may not again consider or double-count the use of a firearm as an aggravating factor. State v. Jarbath, 114 N.J. 394 (1989).
The court also was impressed by evidence of the threats that defendant made in some instances and the statements of some of the victims disclosing continuing emotional distress. However, these circumstances would appear more probative of the factor under N.J.S.A. 2C:44-1a(2), "[t]he gravity and seriousness
of harm inflicted on the victim," to which the court made no reference.
Defendant's prior conviction in Bergen County also constituted an aggravating factor under N.J.S.A. 2C:44-1a(6). Although two of the Bergen County offenses that constitute defendant's prior conviction were committed on April 10 and 17, after the commission of the first two Passaic County offenses, the Bergen County conviction was permissibly considered as a prior criminal record. See State v. Hawks, 114 N.J. 359 (1989) (prior conviction can be based on a subsequent offense for Graves Act sentencing purposes). Moreover, defendant's continuing course of criminal conduct from February to April was a sufficient basis for the court's determination that there was a risk that defendant might commit another similar offense, meeting the factor of N.J.S.A. 2C:44-1a(3), and that there was a need to deter defendant and others from engaging in this type of criminal conduct. N.J.S.A. 2C:44-1a(9).
The Passaic County court found no mitigating circumstances. This determination is disturbing, particularly in light of the Bergen County court's determination that the evidence established two mitigating circumstances: defendant's unblemished record both as a juvenile and as an adult, N.J.S.A. 2C:44-1b(7), and her cooperation, "to a certain extent," with law-enforcement authorities, N.J.S.A. 2C:44-1b(12). However, at the time of the Passaic County sentencing, the Bergen County conviction was part of defendant's record; further, her cooperation with authorities was not unequivocal. Therefore, the differences between the two determinations regarding mitigating factors are not irreconcilable; although there is evidence that would support a finding of mitigating factors, the failure to find them on this record is not an abuse of discretion.
Another fundamental aspect of the sentencing process is the requirement that judges clearly articulate their reasons for imposing a sentence. See, e.g., State v. Dunbar, 108 N.J. 80, 94 (1987). The ...