On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 00-02-0392.
Before Judges Kestin, Axelrad and Lario.
The opinion of the court was delivered by: Lario, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant William Evers appeals from the modification of his sentence to comport with the Supreme Court's decision and remand order in the same case, State v. Evers, 175 N.J. 355 (2003). Again, this court confronts important issues pertinent to New Jersey sentencing procedure.
The factual and procedural history is recited at length in the Supreme Court's opinion. Id. at 364-367. We need only recount that history as relevant to our present disposition. On February 9, 2000 defendant was charged with one count of second degree endangering the welfare of a child, pursuant to N.J.S.A. 2C:24-4b(4)(a) (currently N.J.S.A. 2C:24-4b(5)(a)) (distribution of child pornography), and forty-three counts of fourth-degree endangering the welfare of a child, pursuant to N.J.S.A. 2C:24-4b(4)(b) (currently N.J.S.A. 2C:24-4b(5)(b)) (possession of child pornography). After three endangering counts were dismissed on the State's motion, defendant, on October 30, 2000, entered a conditional guilty plea to one count of distribution of child pornography and to forty counts of possession of child pornography.
At sentencing, on March 16, 2001, the judge downgraded the second-degree distribution offense to the third-degree sentencing range, in accordance with N.J.S.A. 2C:44-1f(2). Critically, the judge also found defendant had overcome the presumption of incarceration that normally attaches to first-and second-degree offenses. The judge found defendant had made a threshold showing, as N.J.S.A. 2C:44-1d required, that his incarceration would amount to a"serious injustice," overriding "the need to deter such criminal conduct by others." Defendant was sentenced to five years' probation conditioned upon the service of 364 days in the Essex County jail. The custodial aspect of the sentence was stayed for six months. The sentences on the forty possession counts were run concurrently with each other and with the distribution count.
Defendant appealed from the convictions; and the State appealed from the sentence, arguing that the presumption of incarceration for the second-degree crime had not been overcome. In an unpublished opinion, we affirmed the convictions and the sentence. Judge Steinberg, dissenting from the disposition of the sentencing issue, believed the presumption of incarceration had not been rebutted. The State appealed to the Supreme Court as of right with regard to the sentencing issue, R. 2:2-1(a)(2), and defendant's petition for certification regarding the convictions was granted on a limited basis. The Supreme Court affirmed the convictions but, agreeing with Judge Steinberg, it remanded for resentencing. Justice Albin, writing for the Court, explained:
Defendant seeks to overcome the presumption of imprisonment that applies to his conviction of a second-degree crime, so we look to the relevant statute and case law to determine whether he has met his burden. The Code provides that a sentencing court shall deal with a person who has been convicted of a crime of the first or second degree by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. [N.J.S.A. 2C:44-1d.]
Absent a proper finding of"serious injustice" that outweighs the need for general deterrence, a trial court must impose a custodial sentence, [State v. Roth, 95 N.J. 334, 358-59 (1984)], unless the defendant has been found eligible for an alternative sentence specifically authorized by the Code, State v. Soricelli, 156 N.J. 525, 537-38 (1999). The presumption of imprisonment is not dispelled merely because the trial court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and the interests of justice justify downgrading a first- or second-degree offense pursuant to N.J.S.A. 2C:44-1f(2). [State v. Jabbour, 118 N.J. 1, 7 (1990)]. In that event, the trial court must nevertheless impose a term of imprisonment within the downgraded sentencing range because the presumption of imprisonment is determined"not by the sentence imposed, but by the offense for which a defendant is convicted," State v. O'Connor, 105 N.J. 399, 404-05 (1987). [Evers, supra, 175 N.J. at 388.]
The Court noted that in determining whether imprisonment would effect a"serious injustice" upon defendant, the New Jersey Criminal Code left"a residuum of power in the sentencing court not to imprison in those few cases where it would be entirely inappropriate to do so." Id. at 389 (citing Roth, supra, 95 N.J. at 358). The Court observed how it has "consistently held that this residuum of power may be legitimately exercised in those'truly extraordinary and unanticipated' cases where the'human cost' of punishing a particular defendant to deter others from committing his offense would be'too great.'" Ibid. (citing State v. Rivera, 124 N.J. 122, 125 (1991); Roth, supra, 95 N.J. at 358).
The Court recounted only two cases where the presumption of incarceration was overcome. Id. at 389-390 (citing State v. Jarbath, 114 N.J. 394 (1989) (where defendant, who suffered from severe mental illness and caused the death of her infant son by dropping him on a coffee table, had demonstrated a character and condition so idiosyncratic that the deterrence purposes of extended incarceration would not be served); and State v. E.R., 273 N.J. Super. 262, 265, 269, 273-74 (App. Div. 1994) (affirming resentencing of defendant with full-blown AIDS from seven-year-custodial to five-year-probationary term in light of the defendant's undisputed physical incapacity and imminent death within six months)). The Court also cited a panoply of cases where it had ruled the presumption was not overcome. Id. at 390-392 (citing Jabbour, supra, 118 N.J. at 3-4, 8-9; State v. Johnson, 118 N.J. 10, 14-20 (1990); State v. Kelly, 97 N.J. 178, 188, 219-220 (1984); Roth, supra, 95 N.J. at 340-41, 366-69; Soricelli, supra, 156 N.J. at 526, 528-32, 537-40; Rivera, supra, 124 N.J. at 123-27; O'Connor, supra, 105 N.J. at 402, 405-408, 410-411; State v. Hodge, 95 N.J. 369, 371-372, 378-80 (1984)). Its review of these cases
suggests the heavy burden borne by a defendant who seeks to overcome the presumption of imprisonment. The common thread running through each is the focus on the gravity of the offense, which implicates the need for specific and general deterrence. In none of these cases was the defendant able to show that his character and condition were so unique or extraordinary, when compared to the class of defendants facing similar terms of incarceration, that he was entitled to relief from the presumption of imprisonment. [Id. at 392.]
Recognizing the need of the trial courts for guideposts to signal when a defendant presents"the extraordinary or extremely unusual case where the human cost of imprisoning a defendant for the sake of deterrence constitutes a serious injustice," the Court declared:
In deciding whether the"character and condition" of a defendant meets the"serious injustice" standard, a trial court should determine whether there is clear and convincing evidence that there are relevant mitigating factors present to an extraordinary degree and, if so, whether cumulatively, they so greatly exceed any aggravating factors that imprisonment would constitute a serious injustice overriding the need for deterrence. We do not suggest that every mitigating factor will bear the same relevance and weight in assessing the character and condition of the defendant; it is the quality of the factor or factors and their uniqueness in the particular setting that matters. [Id. at 393-394 (referencing mitigating factors set forth at N.J.S.A. 2C:44-1b).]
The Court proceeded to apply these principles to defendant's case. The Court observed that, at sentencing, the judge found two aggravating factors: the risk defendant would commit another crime, N.J.S.A. 2C:44-1a(3), and the need to deter him and others from violating the law, N.J.S.A. 2C:44-1a(9). Id. at 395. The judge found four mitigating factors: defendant did not contemplate his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1b(2); defendant had no history of prior criminal conduct, N.J.S.A. 2C:44-1b(7); defendant was particularly likely to respond affirmatively to probationary treatment, N.J.S.A. 2C:44-1b(10); and, defendant willingly cooperated with law enforcement authorities by giving a complete statement to ...