On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Before Judges Pressler, Dreier and Kleiner.
The opinion of the court was delivered by KLEINER, J.S.C. (temporarily assigned)
In this appeal we are required to determine the circumstances in which a court may impose a sentence upon a youthful offender, N.J.S.A. 2C:43-5, in excess of the mandated presumptive sentence set forth in N.J.S.A. 30:4-148.
Defendant James Ferguson, who was arrested at age fourteen, entered a plea of guilty at age eighteen to one count of aggravated manslaughter, N.J.S.A. 2C:11-4c, and was sentenced as a youthful offender, N.J.S.A. 2C:43-5, to an indeterminate term not to exceed eighteen years at the Youth Reception and Correction Center and a fine of $1,000. Additionally, he was given credit for time served of 700 days and was required to pay $30 to the Violent Crimes Compensation Board. Defendant appeals and we reverse.
The factual history of this matter is fully discussed in State v. Ferguson, 255 N.J. Super. 530, 605 A.2d 765 (App. Div. 1992). We will very briefly summarize some of the salient facts. At age fourteen, defendant was charged as a juvenile, N.J.S.A. 2A:4A-44d(1), with knowing and purposeful murder, N.J.S.A. 2C:11-3a(1) or (2). The State moved to transfer jurisdiction from the Family Part to the Law Division, R. 5:22-2, and after a contested transfer hearing, jurisdiction was in fact waived. Defendant proceeded to trial with a jury and was convicted of knowing and purposeful murder. He was sentenced to a custodial term of thirty years without parole. On appeal, we determined that defendant had ineffective assistance of counsel at his transfer hearing and we remanded his matter for a new hearing in the Family Part to determine if defendant's case should be waived to the Law Division for trial as an adult. State v. Ferguson, supra, 255 N.J. Super. at 544. We specifically stated:
We retain jurisdiction pending the outcome of the new waiver hearing. If the Judge declines to waive the jurisdiction of the Family Court, we will relinquish all jurisdiction and the matter will proceed in the Family Court on the juvenile delinquency complaints. If the Judge decides to waive jurisdiction of the Family Court, we will then entertain the appeal and review the claims of error raised at the trial resulting in defendant's conviction for murder, and any claims of error raised relevant to the new transfer hearing ordered by this remand.
Subsequent to our remand, defendant negotiated a plea agreement. In exchange for an agreement by the State to reduce the original charges from knowing and purposeful murder to the first degree offense of aggravated manslaughter, N.J.S.A. 2C:11-4c, without a recommendation as to sentence, defendant agreed to forego the new waiver hearing and agreed to submit to the jurisdiction of the Law Division, Criminal Part. He also agreed to dismiss the appeal of his conviction which was still pending despite the remand, State v. Ferguson, supra, 255 N.J. Super. at 544, and to plead guilty to one count of aggravated manslaughter, N.J.S.A. 2C:11-4c. On January 19, 1993, as already noted, the court sentenced defendant as a youthful offender to an indeterminate term not to exceed eighteen years at the Youth Reception and Correction Center. Defendant was also fined $1,000, was required to pay $30 to the Violent Crimes Compensation Board, and was given credit for 700 days previously served.*fn1
Pursuant to R. 2:9-11, defendant filed an appeal limited solely to the issue of the propriety of the sentence as imposed. After oral argument, we requested full briefing on all issues respecting defendant's sentence, and specifically requested that the State and defendant address the question of the meaning of "good cause" as used in N.J.S.A. 30:4-148, and the relationship of that standard to the aggravating and mitigating factors defined in N.J.S.A. 2C:44-1a and -1b, as those factors pertain to sentencing. Pursuant to our directive, defendant now raises five points of error:
THE TRIAL COURT SHOULD NOT HAVE FOUND AS AN AGGRAVATING FACTOR -- "THE NATURE AND CIRCUMSTANCES OF THE OFFENSE" -- BECAUSE THIS AGGRAVATING FACTOR IS NOT SUPPORTED BY REASONABLY CREDIBLE EVIDENCE, IS IN CONFLICT WITH AN EARLIER SENTENCING ON THE SAME RECORD IN WHICH THE TRIAL COURT
DID NOT FIND THIS AGGRAVATING FACTOR, AND IS INCONSISTENT WITH THE MITIGATING FACTORS FOUND BY THE TRIAL COURT.
THE TRIAL COURT AT RESENTENCING SHOULD HAVE FOUND THE ADDITIONAL MITIGATING FACTOR THAT JAMES' IMPRISONMENT WOULD ENTAIL EXCESSIVE HARDSHIP FOR HIMSELF AND HIS FAMILY.
THE TRIAL COURT IMPOSED A SENTENCE IN VIOLATION OF THE YOUTHFUL OFFENDER ACT BY EXCEEDING THE PRESUMPTIVE INDETERMINATE TERM NOT TO EXCEED FIVE YEARS WITHOUT A SHOWING OF "GOOD CAUSE."
THE TRIAL COURT'S APPLICATION OF THE SENTENCING GUIDELINES TO THE FACTS OF THIS CASE MAKES THE SENTENCE CLEARLY UNREASONABLE SO AS TO "SHOCK THE JUDICIAL CONSCIENCE."
A. James Should Have Been Sentenced to Probation.
B. James Should Have Been Sentenced To A Term Appropriate For A Crime One Degree Lower.
THE IMPOSITION OF AN ADDITIONAL $1,000 FINE AT THE SECOND SENTENCING WAS IMPROPER.
As the third point raised by defendant is dispositive of this appeal, we will concentrate on that allegation of error, but will comment where appropriate on ...