Before Judges King, Wefing and Wecker. On appeal from Superior Court of New Jersey, Law Division, Salem County, 00-03-00096-I (Lebra), 01-6-307-I (Comeaux).
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2003
These two appeals are from sentences imposed by the same trial judge for the same offense, vehicular homicide. In State v. Lebra, A-2454-01, defendant was sentenced to three years on probation, conditioned on serving 364 days in county jail, and the State appeals. In State v. Comeaux, A-2943-01, defendant was sentenced to four years in prison with an 85% period of parole ineligibility, and both parties appeal. The two matters were initially argued before us on our excessive sentence calendar; we ordered them transferred to our regular calendar for briefing of the issues presented. We now consolidate them for purposes of this opinion. After reviewing the records in each matter and considering the arguments, we remand both matters for resentencing.
On October 23, 1999, shortly before 11:00 p.m., Lebra, then eighteen years old, was driving on Auburn Road in Pilesgrove Township. He had three passengers in his car. His speed exceeded one hundred miles per hour. He lost control of the vehicle, hit another car and then crashed into a telephone pole. One of his passengers, his friend, seventeen-year-old Brett Kooman, died in the crash. Lebra admitted he had been drinking that evening. A blood alcohol test performed several hours later showed a blood alcohol level of .079.
Lebra was thereafter indicted for aggravated manslaughter, a crime of the first degree, N.J.S.A. 2C:11-4a; vehicular homicide, a crime of the second degree, N.J.S.A. 2C:11-5, and assault by auto, a crime of the fourth degree, N.J.S.A. 2C:12-1c. He also received a number of motor vehicle summonses for various offenses, including driving while intoxicated, reckless driving, and speeding. As part of the preparation of its case, the State served an expert's report which, extrapolating from defendant's .079 blood alcohol reading, concluded that at the time of the accident, defendant's blood alcohol level was .11, above the legal limit.
Lebra had no prior involvement with the criminal justice system, either as a juvenile or an adult. Ultimately he pled guilty to vehicular homicide. The terms of the plea agreement called for the State to recommend to the trial court that defendant be sentenced as if he had committed a crime of the third degree, rather than one of the second degree. When Lebra entered his plea, he specifically acknowledged that he understood "that in all likelihood, there [would] be a period of incarceration depending upon the arguments at the time of sentencing . . . there [would] be a New Jersey State Prison sentence" as a result of his plea. He also acknowledged that his sentence would be subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 ("NERA"). When Lebra appeared for sentence, however, the trial court did not impose a period of incarceration in State prison with an 85% period of parole ineligibility. Rather, after reviewing the presentence report and hearing the argument of counsel, the trial court sentenced defendant to three years on probation, conditioned upon serving 364 days in the county jail. It is from that sentence that the State has appealed. N.J.S.A. 2C:44-1f(2). Defendant's sentence has been stayed pending this appeal.
On January 29, 2000, twenty-two-year-old Ronnie Comeaux attended a family reunion in Quinton Township. As he drove home, he was involved in a front-end collision sometime after 7:00 p.m. with another car. He had attempted to pass a car on a curve at a high rate of speed. He lost control of his vehicle and collided with an oncoming car. His passenger, Abu Gibson, died in the accident and the occupants of the other car were seriously injured. Comeaux told police who responded to the accident scene that he had been drinking beer at the reunion. A blood alcohol test showed a blood alcohol level of .165 at the time of the accident.
Comeaux was indicted for aggravated manslaughter, vehicular homicide, and three counts of fourth-degree aggravated assault. He also received motor vehicle summonses for driving while intoxicated, improper passing and reckless driving.
Comeaux had a minimal involvement with the criminal justice system. As a juvenile, he had been charged with improper behavior and defiant trespassing but that had been diverted and there was no adjudication. As an adult, he had been charged with possession of cocaine but that was downgraded and remanded to the municipal court. As with Lebra, these were Comeaux's first indictable charges. Comeaux pled guilty to vehicular homicide and one count of aggravated assault in return for the State's agreement to recommend a sentence of five years in prison for vehicular homicide and a concurrent nine months for aggravated assault. He further acknowledged that he was to be sentenced in accordance with NERA. The plea bargain did not call for the State to recommend that Comeaux be sentenced as a third-degree offender.
Comeaux was originally scheduled to be sentenced on the same day as Lebra. The trial court, however, did not impose sentence that day but rather, based upon the Lebra matter, rejected the plea bargain and invited the State to make another offer. The State declined to do so. Thereafter, the trial court indicated on the record to Comeaux that in return for a plea of guilty, the trial court would sentence him to four years in prison, subject to NERA. Defendant agreed. At sentencing, the trial court sentenced defendant accordingly. Defendant Comeaux has appealed, arguing that his sentence is so disparate from Lebra's that it must be adjusted accordingly. State v. Roach, 146 N.J. 208, ...