On certification to the Superior Court, Appellate Division.
For affirmance and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For reversal -- Justice Stein. The opinion of the Court was delivered by Pollock, J. Stein, J., dissenting.
The companion case, State v. Jabbour, holds that the presumption of imprisonment for first- and second-degree offenses applies to a defendant who commits a sex offense unless the circumstances of the offender are so extraordinary and unanticipated that imprisonment would not serve the legislative purposes of punishment and deterrence. 118 N.J. 1, 6, 570 A.2d 391. In Jabbour, we further held that defendant's physical and psychiatric condition did not distinguish him from other sex offenders and that imprisonment would not be a serious injustice that overrode the need to deter such conduct by others. Id. at 8-9, 570 A.2d at 394-395. We likewise reject the claim of defendant, Sheldon Johnson, a deaf drug addict who sodomized his stepdaughter, that his imprisonment would be a serious injustice.
In a plea agreement, defendant pled guilty to two counts of first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(1). The State agreed to recommend that defendant's conviction be downgraded to a second-degree offense for sentencing purposes and that any term of incarceration should not exceed ten years. Finding that imprisonment would be a serious injustice, the trial court sentenced defendant to two concurrent five-year probationary terms. On the State's appeal, the Appellate Division vacated the sentence, holding that a non-custodial penalty would be inappropriate under these circumstances. We affirm.
Defendant and his wife, who are both deaf, have two children by their marriage. Mrs. Johnson also has two other children, including the victim, from a previous marriage. On two occasions between 1984 and 1986, when his stepdaughter was between seven and nine years of age, defendant sodomized her. On another occasion during that same time period, he forced her to submit to cunnilingus. Defendant claims that he committed
these acts when his wife refused to have sexual relations with him because she was angry at his continuing drug use.
At the sentencing hearing, the trial court found a number of mitigating factors: defendant had no history of prior criminal conduct, N.J.S.A. 2C:44-1b(7); his conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8); he was unlikely to commit another offense, N.J.S.A. 2C:44-1b(9); and imprisonment would impose excessive hardship on him and his family, N.J.S.A. 2C:44-1b(11). In contrast, the court found only one aggravating factor, the need for deterrence. N.J.S.A. 2C:44-1a(9). Clearly convinced that the mitigating factors substantially outweighed the aggravating factor and that the interest of justice so demanded, N.J.S.A. 2C:44-1f(2), the court accepted the State's recommendation and sentenced the defendant as if the offense were a crime of the second degree. Such offenses are subject to a sentencing range of five to ten years and a presumptive term of seven years. N.J.S.A. 2C:43-6a(2) and 2C:44-1f(1)(c). The court found that imprisonment would be inappropriate and sentenced defendant to five years' probation, conditioned on defendant's attendance at: (1) the access program for the deaf at Barnert Hospital; (2) an out-patient drug and alcohol-treatment program; and (3) out-patient psychiatric counselling, if so ordered by his probation officer. The court also ruled that defendant could not reside in the same house with the victim.
Although the trial court decided against incarceration, it acknowledged: "I'm frank to admit that it's a close question as to whether or not the imprisonment of Mr. Johnson would be a serious injustice which overrides the need to deter such conduct by others." The court, however, concluded:
Because I'm satisfied that Mr. Johnson needs, by his own admission, help; that he has been seeking appropriate help; that to remove now the opportunity for him to obtain and to continue with appropriate therapy might in the long run do more harm than good, I am of the opinion that his imprisonment at this time would be a serious injustice * * *.
In an unreported opinion, the Appellate Division reversed, concluding that even if all the mitigating factors were accepted as established, a non-custodial penalty was inappropriate. The court further found that defendant's deafness did not distinguish him from other similarly-situated defendants or excuse him from imprisonment. We agree.
Like Jabbour, supra, 118 N.J. 1, 570 A.2d 391, this case implicates both the relative roles of trial and appellate courts in sentencing decisions and the obligation of the judiciary to adhere to the Legislature's sentencing guidelines. An appellate court may not substitute its judgment for that of the trial court, State v. O'Donnell, 117 N.J. 210, 564 A.2d 1202 (1989), but it may review a sentence to determine if the trial court violated the sentencing guidelines, State v. Roth, 95 N.J. 334, 364-65, 471 A.2d 370 (1984). As in Jabbour, we find that the trial court did not comply with those guidelines.
Under the New Jersey Code of Criminal Justice (the Code), all first- and second-degree offenses are subject to a presumption of imprisonment. The relevant statute provides:
The court shall deal with a person who has been convicted of a crime of the first or second degree by imposing a sentence of imprisonment, unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.
Although the judiciary possesses a "residuum of power" to overcome the presumption of imprisonment, that power is severely limited. Jabbour, supra, 118 N.J. at 5, 570 A.2d at 392; Roth, supra, 95 N.J. at 358, 471 A.2d 370. By channeling judicial discretion through the sentencing provisions of the Code, the Legislature sought to encourage uniformity in sentencing. State v. Hodge, 95 N.J. 369, 375, 471 A.2d 389 (1984). The Code achieves this goal by focusing on the offense, rather than the offender. Id. at 375, 471 A.2d 389. Because severity
of the offense is the most important factor in sentencing, Roth, supra, 95 N.J. at 367, 471 A.2d 370, the presumption of imprisonment can be overcome only in "'truly extraordinary and unanticipated circumstances.'" Id. at 358, 471 A.2d 370 (quoting Fair and Certain Punishment, Report of the Twentieth Century Fund Task Force on Sentencing 21 (1976)). Such circumstances rarely exist. Compare Jabbour, supra, 118 N.J. 1, 570 A.2d 391 (remanding for resentencing where defendant convicted of second-degree sexual assault was sentenced to five years' probation on the grounds that imprisonment would not constitute a "serious injustice") with State v. Jarbath, 114 N.J. 394, 409, 555 A.2d 559 (1989) (holding that because the mentally-retarded female defendant would suffer "hardship and privation greatly exceeding that which would be accepted and endured by ordinary inmates," incarceration would be a serious injustice).
As the Appellate Division concluded, defendant has not shown that imprisonment would cause him a serious injustice outweighing the need for general deterrence. With the exception of his deafness, the mitigating factors found by the trial court are nearly identical to those found insufficient to overcome the presumption of imprisonment in Roth and Hodge.
The defendant in Hodge pled guilty to aggravated sexual assault after forcing his stepdaughter to engage in intercourse. The trial court imposed a sentence of sixty-three days in jail and five years' probation. It found as mitigating factors that defendant was a first offender; that his conduct was the result of circumstances unlikely to recur; that he was likely to respond favorably to probationary treatment; that he was employed, enjoyed a good reputation among his peers, and supported his family; and that incarceration would impose excessive hardship because he was supporting the family. Hodge, supra, 95 N.J. at 372, 471 A.2d 389. We reversed and remanded
for resentencing because "the [trial] court concentrated in good measure upon the defendant, rather than focusing on the gravity of the offense." Id. at 376, 471 A.2d 389.
In the present case, the Appellate Division correctly refused to permit defendant's drug and alcohol problems to justify a non-custodial sentence. We rejected similar arguments in Roth:
[E]ven granting the trial court's conclusion that his case was "much more difficult than some," he is not the truly exceptional defendant or one caught up in a maelstrom of "engulfing circumstances." It is unfortunate, but not exceptional, that his youthful dependence on drugs and alcohol triggered his criminal behavior. Many crimes arise out of drug and alcohol use. His situation, while regrettable, is not rare.
We likewise reject defendant's argument that his deafness exempts him from imprisonment. The Code makes no exception for sex offenders who cannot hear. Even when they commit crimes, the handicapped should be treated like other members of society. To treat the deaf as "different" or "extraordinary" would conflict with the goal of equal treatment.
Criminals who are blind, deaf, paralyzed, or otherwise handicapped are frequently sent to prison. Doubtless their handicaps pose special problems for them and their custodians. The solution, however, is not as the dissent concedes, post at 33, 570 A.2d at 408, to impose on deaf offenders sentences that "differ in length or severity from the sentences received by hearing offenders." Tucker, Deaf Prison Inmates: Time to be Heard, 22 Loy. L.A.L.Rev. 1, 14 (1988). Rather, "[t]he ultimate solution of the problem * * * lies in equalizing -- to the extent practicable -- the conditions of confinement for deaf and hearing offenders." Id. at 14.
We recognize that because of his hearing impairment, prison life will be harder for defendant than for hearing prisoners. No showing has been made, however, that the prison system cannot handle the problems of deaf offenders. Indeed, the Attorney General assures us that the system can accommodate
defendant. After oral argument, Gary J. Hilton, Jr., the Assistant Commissioner for Adult Institutions of the State of New Jersey Department of Corrections, submitted an affidavit reciting that "[t]he Department of Corrections has custody of a number of inmates who suffer from physical handicaps." Those inmates include twenty-four who are hearing-impaired, seven who are legally blind, twenty-two who are partially paralyzed, and fourteen others who require kidney dialysis. The Assistant Commissioner averred further that "if an inmate's physical or psychological condition necessitates special consideration, or particular problems arise in the course of his incarceration, the Department makes appropriate custodial arrangements." We trust that those arrangements will include, when necessary, providing an interpreter and other services to accommodate defendant's hearing impairment.
Our dissenting colleague apparently agrees that the trial court could have imposed a custodial sentence on defendant. Post at 21, 570 A.2d at 401. According to the dissent, however, the non-custodial sentence should be sustained as a "permissible exercise of the sentencing court's limited discretionary power * * *." Ibid. To sustain that result, the dissent ignores a cardinal rule of sentencing under the Code: the sentence must focus on the offense, not the offender. Roth, supra, 95 N.J. at 355, 471 A.2d 370; Hodge, supra, 95 N.J. at 376-77, 471 A.2d 389. Instead of following that rule, the dissent emphasizes defendant's personal history. To that extent, the dissent contravenes the legislative intent. Hodge, supra, 95 N.J. at 376, 471 A.2d 389. Through maximum and minimum sentences, N.J.S.A. 2C:43-6a and -6b; presumptive sentences, N.J.S.A. 2C:44-1f(1); specific aggravating and mitigating factors, N.J.S.A. 2C:44-1a and -1b; and other guidelines, the Legislature has constrained judicial discretion. See Jabbour, supra, 118 N.J. at 5-6, 570 A.2d at 392-393. Although a sentencing court may receive personal information about the defendant's background, particularly when he or she has been convicted of a sex
offense, that information should not divert the court from its obligation to follow the sentencing guidelines.
By emphasizing "the impact of imprisonment on a defendant's dependents," post at 26, 570 A.2d at 404, the dissent contradicts the plain language of the guidelines. Whatever merit lies in the dissent's proposed standard, the Code does not state that courts, when determining whether the presumption of imprisonment has been overcome, may consider a defendant "in combination with his or her dependents." Post at 31, 570 A.2d 406. Rather, the effect of imprisonment on a defendant's family is expressly included as a mitigating factor to be weighed when determining the appropriate sentence. N.J.S.A. 2C:44-1b(11) provides that one mitigating factor is whether "the imprisonment of the defendant would entail excessive hardship to himself or his dependents." The "serious injustice" exception to the presumption of imprisonment does not contain a comparable provision. Instead, the exception states that a sentencing court should consider "the character and condition of the defendant." N.J.S.A. 2C:44-1d. Unlike the mitigating factor contained in N.J.S.A. 2C:44-1b(11), the "serious injustice" exception makes no reference to the defendant's dependents. This is not to say that a court may never consider the effect on dependents. In an extreme case, the effect on a dependent could relate to the "character and condition of the defendant." If, for example, a close family member were a quadriplegic totally dependent on the defendant, a sentencing court could consider that fact. The present case is more mundane. Notwithstanding his deafness, Johnson is not an "idiosyncratic" defendant, whose "condition" prevents his incarceration from deterring ...