On appeal from the Superior Court of New Jersey, Law Division. Ocean County.
King, Shebell and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
[244 NJSuper Page 586] The questions to be decided on this appeal are: 1) whether the Supreme Court's remand in State v. Towey, 114 N.J. 69, 552 A.2d 994 (1989) (Towey I) invited the sentencing judge to reassess the validity of the ten year base term originally imposed upon the defendant; 2) whether the sentencing judge's decision to impose the presumptive 15 year prison term on resentencing was in accord with proper sentencing guidelines; 3) whether the increase in the base term sentence from ten to 15 years was a violation of the Double Jeopardy Clause of the federal and State constitutions; and 4) whether, regardless of
what base term is appropriate, the five year parole ineligibility term is valid.
We answer the foregoing question as follows. The Supreme Court's opinion in Towey I questioned the validity of both the base term and the Graves Act parole ineligibility term. Consequently, it remanded the entire matter for resentencing. At the resentencing, although misapplying certain aggravating and mitigating factors, the sentencing judge properly concluded that he had originally erred in imposing the minimum ten year base term. The sentencing judge then correctly concluded that the appropriate base sentence was the presumptive term of 15 years together with the minimum parole ineligibility period of one-third of the base sentence, five years, required by the Graves Act. However, the increase in the base term sentence from ten to 15 years violates the Double Jeopardy Clause of the United States Constitution. U.S. Const. amend. V. Therefore, the 15 year base term sentence imposed upon resentencing is vacated and the judgment of conviction is modified to reinstate the original ten year base term imposed at the first sentence. Because the base term must remain at ten years for constitutional reasons but not for reasons mandated by the sentencing guidelines, the sentencing judge was not required to justify the five year parole ineligibility term by correlating it to the incorrect ten year base term. Instead, the five year Graves Act sentence is sustainable as the minimum parole disqualifier permitted on a presumptive term that should have been imposed at the first sentencing. Thus, as modified, the judgment under review is affirmed.
The facts of this case are set forth in detail in Towey I and need not be repeated in detail herein. Suffice it to say that on October 10, 1985, after ingesting approximately two quarts of liquor and a quantity of methamphetamines, defendant shot and killed her husband, William Towey. Thereafter, defendant entered a plea of guilty to an accusation charging her with first degree aggravated manslaughter for which she could have been
sentenced to a term of between ten and 20 years.*fn1 On October 10, 1986 defendant was sentenced to a ten year term of incarceration, the minimum permissible base term, with a five year parole disqualifier, the maximum Graves Act sentence based upon that base term.
Defendant appealed her sentence contending that the imposition of the maximum Graves Act sentence was inconsistent with the minimum base term. After an affirmance of the sentence in the Appellate Division, the Supreme Court granted certification and thereafter remanded the matter to the Law Division "for resentencing." Towey, 114 N.J. at 86, 552 A.2d 994.
At the resentencing, defendant contended that she has made a remarkable turnaround in her life and attitude since her confinement at the Edna Mahan Correctional Facility for Women. In support of her contention she submitted, along with other documents, the letter of Dr. Harry Zall, a Board certified psychiatrist. Dr. Zall examined and treated defendant before her original sentencing and interviewed her in prison for over two hours prior to resentencing. The other documents disclosed that defendant participated in a drug and alcohol program and founded the Narcotics Anonymous program at the prison. The material also reveals that defendant has expressed a desire to pursue a career in addiction counselling upon her release from prison. Toward that career, defendant has taken college courses while incarcerated and plans to obtain a college degree as soon as possible. Finally, the documents disclose that defendant has been instrumental in counselling and educating others through the above programs and through her work as a para-professional in the education department at Edna Mahan.
The sentencing judge refused to consider anything that had occurred since the original sentencing, holding that the "defendant's progress, both emotionally and psychologically" "both before and since her incarceration, are certainly very important matters for consideration, but not for me." He felt that only the parole board had a right to consider that information.
At resentencing, the judge found that the mitigating factors did not preponderate over the aggravating factors and concluded that the original ten year base term was not justified. As a result, he imposed the presumptive base term of 15 years and the minimum parole ineligibility period permitted by the Graves Act based on the presumptive term, i.e., five years. Defendant now appeals from that determination. On appeal she challenges both the constitutionality of the higher base term and the propriety of the five year parole disqualifier.
In Towey I the Supreme Court addressed the parameters of a sentencing judge's discretion when deciding the term of parole ineligibility permitted under the Graves Act for the first time. It observed that the Legislature prescribed no standards to guide the trial courts in the imposition of the appropriate parole ineligibility term. Towey, 114 N.J. at 80, 552 A.2d 994. However, in view of the legislative decision to make aggravating and mitigating factors relevant for parole ineligibility decisions in non-Graves Act offenses, the Court concluded that the legislative intent would best be served by requiring sentencing judges to refer to the aggravating and mitigating circumstances of the case when imposing a parole ineligibility term more than the minimum required by the Graves Act. It further concluded that in Graves Act cases, as in non-Graves Act cases, there must be some consistency between the base term imposed and the parole ineligibility period. Thus, the Court said:
[W]e hold that the specific length of parole ineligibility terms, in both Graves Act and non-Graves Act cases, must ordinarily be consistent with the length of the base term imposed by the court, and with the court's evaluation of the relevant aggravating and mitigating factors. In Graves Act sentences, the length of the minimum term can also be affected by the extent of the harm
threatened or caused by the defendant's use or possession of the firearm. [ Id. at 81, 552 A.2d 994.]
Since the sentencing court must weigh aggravating and mitigating factors in order to impose a sentence higher or lower than the presumptive term, we would ordinarily expect a high degree of correlation between the length of the base term and the relative severity of the parole ineligibility term. [ Id. at 82, 552 A.2d 994.]
Because the base term imposed by the sentencing judge is an important reference point in determining the appropriateness of the parole ineligibility term, the Court also took the opportunity to review the principles to be utilized in determining the appropriate base term. Those principles had been previously explained in State v. Roth, 95 N.J. 334, 471 A.2d 370 (1984) and State v. Hodge, 95 N.J. 369, 471 A.2d 389 (1984). The Court said:
As we explained in State v. Roth, supra, 95 N.J. 334 [471 A.2d 370], the Code promotes sentencing uniformity by establishing presumptive terms for each degree of crime, N.J.S.A. 2C:44-1f, within the prescribed sentencing ranges set forth in N.J.S.A. 2C:43-6a. The sentencing court may then adjust the presumptive term upward or downward depending on its evaluation and balancing of the aggravating and mitigating factors listed in N.J.S.A. 2C:44-1(a) and (b). Id. at 359 [471 A.2d 370]. [ Towey, 114 N.J. at 79, 552 A.2d 994.]
In light of the well established principles of sentencing used to determine the appropriate base sentence and the guidelines relative to Graves Act sentences it had just announced, the Court reasoned that a remand was necessary because "the trial ...