On certification to the Superior Court, Appellate Division, whose opinion is reported at 262 N.J. Super. 78 (1993).
Stein, Wilentz, Clifford, Handler, Pollock, O'hern, Garibaldi
The opinion of the Court was delivered by
The narrow issue presented by this appeal is whether the Code of Juvenile Justice, N.J.S.A. 2A:4A-20 to -91 (Juvenile Code), should be construed to authorize the sentencing of juveniles who have committed two or more acts of delinquency to consecutive
terms of incarceration. The Juvenile Code is silent on the subject of consecutive sentences. The Appellate Division concluded that consecutive sentences are unauthorized. See State in Interest of J.L.A., 262 N.J. Super. 78, 619 A.2d 1321 (1993). We granted the State's petition for certification, 134 N.J. 477 (1993).
For purposes of this appeal the underlying facts are not contested, and we adopt essentially the version set forth in the Attorney General's amicus brief.
On December 14, 1990, at about 11:00 p.m., J.L.A., a juvenile, and his companion approached David San Flippo and George Ingram, who were walking on Mt. Ephraim Avenue in Camden. J.L.A. demanded that San Flippo and Ingram give him "everything they had," pointing a sawed-off shotgun at them and stating, "we're not kidding." Ingram responded by pushing J.L.A.'s associate into him and running away. San Flippo hesitated, and then also turned and ran, pursued by J.L.A. J.L.A. then stopped and fired the shotgun at San Flippo, wounding him in the arm. J.L.A. fled. San Flippo was hospitalized for five days, and sustained nerve damage in his arm and wrist. J.L.A. was eventually apprehended, and identified by San Flippo and an eyewitness as the shooter.
Juvenile complaints were filed against J.L.A. in Camden County charging him with acts of delinquency that, if committed by an adult, would have constituted attempted armed robbery, in violation of N.J.S.A. 2C:5-1; second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); first-degree armed robbery, in violation of N.J.S.A. 2C:15-1; and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a.
After a hearing the court adjudicated J.L.A. a delinquent. The Family Court merged the adjudications of attempted armed robbery and possession of a weapon for an unlawful purpose with the armed robbery adjudication. The court ordered that J.L.A. serve an indeterminate term of incarceration, not to exceed four years,
for armed robbery and a consecutive indeterminate term, not to exceed three years, for aggravated assault.
The Appellate Division affirmed the adjudications of delinquency but reversed the Family Court's imposition of consecutive sentences. The Appellate Division observed that the Legislature, in enacting the Juvenile Code, had established "in painstaking detail, a comprehensive scheme, essentially complete as written," finding "hard to imagine that the Legislature intended its silence as to [consecutive sentences] to stand for more than [their] omission." 262 N.J. Super. at 89. In support of its Conclusion that the Legislature had not intended to authorize imposition of consecutive sentences on juveniles, the Appellate Division specifically noted the provision of the Juvenile Code, N.J.S.A. 2A:4A-44d(4), authorizing imposition of an extended term of incarceration on a juvenile who commits three or more unrelated offenses at different times. The Appellate Division observed that because the authorized extended term cannot exceed the maximum permissible term of the most serious offense for which the juvenile has been adjudicated plus two years, a juvenile adjudicated delinquent for three unrelated offenses that would be first-degree offenses if committed by an adult would be subject to a statutory maximum sentence of incarceration of six years. 262 N.J. Super. at 90 (construing N.J.S.A. 2A:4A-44d(1), (4)).
The Appellate Division explained that if consecutive sentences were authorized, a less culpable juvenile who committed "several offenses * * * in a single, isolated, aberrant criminal event would be subject to significantly greater punishment than a juvenile who undertook three separate and distinct criminal transactions." Ibid. Expressing doubt "that it could have been the Legislature's intent to expose the more culpable juvenile to a lesser penalty," the Appellate Division determined that imposition of consecutive sentences conflicted with the Juvenile Code provision authorizing extended terms: "While we might enforce what we would otherwise view as an unwise or an anomalous result if the Legislature
had clearly expressed its will, we will not supply, by implication, a term [that] conflicts in spirit with another provision of the Code." Id. at 91.
By framing the issue as whether the Legislature's enactment of the Juvenile Code reflected an intention to prohibit Family Courts from imposing consecutive sentences on juvenile offenders under all circumstances, we necessarily recognize the inherent power of the judiciary, absent a statutory prohibition, to impose consecutive sentences for separate offenses. That power is derived from the common law, and has consistently been recognized by our courts. In State v. Maxey, 42 N.J. 62, 198 A.2d 768 (1964), we acknowledged that "the judicial power to impose consecutive sentences in this State is not founded upon statute but rather upon our common law, derived from the common law of England. * * * Consequently, our courts have the discretion and power to impose consecutive sentences for terms of years." Id. at 64, 66. In Maxey, the Court also observed that the inherent power of courts to sentence consecutively could be abrogated by statute: "In the absence of a statute expressly prohibiting the sentencing Judge from exercising such discretion, we find that the power to impose consecutive life sentences resides in the trial Judge." Id. at 69; see also State v. Mahaney, 73 N.J.L. 53, 56, 62 A. 265 (Sup. Ct. 1905) ("The great weight of authority in this country is that, without any statutory provision for consecutive sentences, the power to impose them resides in the court."), aff'd, 74 N.J.L. 849, 67 A. 1103 (E. & A. 1907).
Acknowledging that whether the Juvenile Code prohibits consecutive sentencing is a question of first impression, the State argues by analogy to cases holding that in sentencing young adult offenders to indeterminate terms at the Youth Correctional Institution Complex or Correctional Institution for Women pursuant to N.J.S.A. 2C:43-5, courts may impose consecutive sentences even though the relevant sentencing statute, N.J.S.A. 30:4-148, does
not specifically authorize them to do so. Beginning in 1957 with State v. Horton, 45 N.J. Super. 44, 131 A.2d 425 (App. Div. 1957), our courts have recognized that trial courts may impose consecutive sentences on young adult offenders even though such sentences are neither expressly permitted nor prohibited by statute. In Horton, the defendant was initially sentenced concurrently on two counts of larceny. After escaping from the New Jersey Reformatory at Bordentown, he committed another larceny. When he was finally apprehended, he pled guilty to the larceny committed while at large. The trial court imposed a sentence on that larceny count "'to run consecutively to any existing sentence.'" Id. at 45. Horton challenged the sentence, arguing that N.J.S.A. 30:4-148 did not authorize consecutive sentences. Rejecting his argument, the Appellate Division held, "The statute before us contains no restrictive provision against consecutive reformatory sentences; had the Legislature so intended, it could have explicitly so provided. We are of the opinion that the result arrived at by the trial Judge was correct." Id. at 48. In State v. Bono, 128 N.J. Super. 254, 319 A.2d 762, certif. denied, 65 N.J. 572 (1974), the Appellate Division upheld the consecutive sentence of the defendant under the same statutory section at issue in Horton. The defendant had been sentenced consecutively on rape and lewdness charges. He contended that that Disposition was not authorized by N.J.S.A. 30:4-148 and ran counter to the legislative policy of rehabilitation. Following Horton, supra, the Appellate Division concluded:
Our court in State v. Horton, 45 N.J. Super. 44, 131 A.2d 425 (App. Div. 1957), expressly declared that the imposition of consecutive reformatory sentences is not repugnant to the legislative policy of rehabilitation, and that the court has the ...