On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
Before Judges Long, Kleiner and Kimmelman.
The opinion of the court was delivered by: Kimmelman, J.A.D.
After being referred to the Law Division by the Family Part for trial as an adult, pursuant to N.J.S.A. 2A:4A-26a(2)(a) and R. 5:22-2(b), for the commission of a vicious crime two weeks after his fourteenth birthday, defendant Robert Bessix entered into a plea agreement under which he pled guilty to the first-degree offense of armed robbery. He was subsequently sentenced to a prison term of twenty years with a ten-year period of parole ineligibility. Defendant appeals, contending that he should have been continued as a juvenile and not waived up for trial as an adult and that his sentence was excessive. We affirm the waiver of jurisdiction by the Family Part over defendant. However, for the reasons that follow, we vacate defendant's sentence and remand to the trial court.
Defendant, in the company of four other youths, set upon an elderly man for the purpose of robbing him. Defendant was handed a baseball bat and he used it to strike the victim twice in the head. While the victim was down on the ground and evidently unconscious, at least two of the other youths rifled $9 or $10 from his pockets. They divided up the money and fled. We note that Kamera Bai Robbins, who handed the bat to defendant, was an adult at the time of the offense.
After an extensive waiver hearing, the Family Part Judge prepared a thorough letter opinion dated December 12, 1995, in which he concluded:
Based on the information before the Court, if all of the components of the individual rehabilitation plan could be put into place and work to their maximum potential, there is a chance that Robert Bessix could be rehabilitated before the age of nineteen. That probability is not high.
The Court must weigh that probability against the reasons for waiver. Robert was the primary actor in the vicious, brutal attack with a weapon on an elderly unarmed gentlemen. The police officer at the probable cause stage indicated that he saw the victim a few hours later and that he had a severely bruised and bloodied face, that his eyes were swollen shut, he was unable to talk and his face was "severely mangled". Robert hit the victim twice, the second time being after he was knocked to the ground and then tripped and previously assaulted by Shydee Spencer.
The community is entitled to be protected from individuals who stalk victims in a predatory fashion and then assault them in the manner which Mr. Bessix did. I find that the reasons for waiver substantially outweigh any probability of rehabilitation, and grant the Prosecutor's motion to transfer Mr. Bessix to the Law Division, Criminal Part.
In affirming the decision of the Family Part Judge, we recognize that waiver of a juvenile offender for trial as an adult in the Law Division is highly discretionary. State v. Onque, 290 N.J. Super. 578, 584 (App. Div.), certif. denied, 146 N.J. 497 (1996). Based upon our review of the record, it does not appear that the exercise of the Judge's discretion was flawed. See State v. Matarama, 306 N.J. Super. 6, 16 (App. Div. 1997). The Judge's findings of fact and Conclusions of law find ample support in the record and will be given appropriate deference. State v. Johnson, 42 N.J. 146, 162 (1964); Matarama, supra, 306 N.J. Super. at 16.
Pursuant to a plea agreement, defendant entered a guilty plea to the first count of an indictment which charged him with robbery while armed with a deadly weapon, a first-degree offense, contrary to N.J.S.A. 2C:15-1. The recommended sentence was a limit or cap of twenty years in New Jersey State prison with a ten-year period of parole ineligibility.
At sentencing, the trial court recounted the factual circumstances of the crime and discussed the character of defendant. Aggravating factors 1, 2, 9, and 12 were found to exist. N.J.S.A. 2C:44-1. The court made reference to the suggested mitigating factors, but gave them minimal weight under the circumstances. The court concluded that it had "no alternative but to find that the aggravating circumstances certainly preponderate over the mitigating circumstances." The sentence was expressed as follows: "he sentence of the court is 20 years in New Jersey State Prison. There is a parole ineligibility period of 10 years." For the reasons hereinafter stated, we find that the trial court did not sufficiently articulate on the record its reasons for imposing a period of parole ineligibility in this case.
The mechanics which must be followed by a sentencing court in imposing a period of parole ineligibility are set forth in State v. Kruse, 105 N.J. 354 (1987). In Kruse, the Court held that "`eriods of parole ineligibility are the exception and not the rule. They are not to be treated as routine or commonplace.'" Id. at 359 (citation omitted). Further, the Court held that,
fter determining the sentence and deciding on the appropriateness of parole ineligibility, the court "shall state on the record the reasons for imposing the sentence, including . . . consideration of the defendant's eligibility for release under the law governing parole [and shall state] the factual basis supporting its findings of ...