June 28, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTIAN R. DELOACH, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-03-0485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2007
Before Judges Weissbard and Graves.
Defendant, Christian DeLoach, appeals from his resentencing on March 24, 2006, to an aggregate term of fifty years with an eighty-five percent period of parole ineligibility resulting from application of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
After a jury trial in June 2003, defendant was convicted on nineteen counts of a twenty-two count indictment charging a variety of violent offenses all committed on July 15, 2001, during an outdoor festival in Asbury Park known as "Greek Fest." On October 24, 2003, defendant was sentenced to an aggregate prison term of sixty years with fifty-one years of parole ineligibility pursuant to NERA. On appeal, in an unpublished opinion filed on February 7, 2006, we affirmed all of defendant's convictions except for a single count of carjacking, as to which we concluded there was insufficient evidence of defendant's culpability. Because defendant's sentence on the carjacking offense, ten years with five years parole ineligibility, was to run consecutive to other counts, and because defendant raised other sentencing arguments that implicated State v. Natale, 184 N.J. 458 (2005), we remanded for a new sentencing. We stated that defendant was free to address his sentencing arguments to the trial judge, who was free to revisit defendant's sentence in its entirety. On remand, the judge eliminated the carjacking sentence but otherwise imposed the same sentence as before, resulting in a fifty-year term with a parole ineligibility period (eighty-five percent) of forty-two and one-half years.
Defendant presents a single argument for our consideration:
THE IMPOSITION OF A MAXIMUM CONSECUTIVE AGGREGATE SENTENCE FOR THE "GROUP TWO" OFFENSES OF ATTEMPTED MURDER AND AGGRAVATED ASSAULTS WAS EXCESSIVE, ESPECIALLY IN LIGHT OF THE CONSPIRATORIAL NATURE OF ALL OF THE OFFENSES.
There is no need for us to repeat anything said in our prior opinion. As we noted there, the judge broke the convictions into three groups for sentencing. One group involved a series of seven armed robberies. The second group covered charges of attempted murder and aggravated assault involving individuals other than those who were victims of the armed robberies. Finally, the third group involved assault and weapons charges arising out of a shootout with a police officer. Within each group, the sentences were to run concurrent, but the sentences on each group were to run consecutive to those imposed on the other groups. Thus, the highest sentence within group one was twenty years subject to NERA; within group two, it was also twenty years subject to NERA; while on the third group, defendant received a ten-year NERA prison term. Thus, the total sentence was fifty years subject to NERA. The entire sentence was also consecutive to a ten-year prison term with three years parole ineligibility that defendant was then serving. As noted, other than eliminating the carjacking, the same sentences were imposed on remand.
Defendant's argument is focused only on the consecutive sentences for the non-police officer offenses in groups one and two, which he argues should have properly been made to run concurrent. At the resentencing, the judge explained in detail his basis for grouping the offenses, his balancing of the aggravating and non-existent mitigating factors, and his reasons for imposing consecutive sentences on each group. The judge fully complied with State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), and adhered to the dictate of Natale, supra, by sentencing without reference to any presumptive term.
It is not our role to substitute our judgment for that of the sentencing judge, who presided over the trial and heard the evidence first-hand. State v. O'Donnell, 117 N.J. 210, 215 (1989). Nor do we properly interfere in the sentencing process simply because we would have arrived at a different result. State v. Roth, 95 N.J. 334, 364-65 (1984). Rather, a sentence must be affirmed if: (1) the sentencing guidelines were followed; (2) the aggravating and mitigating factors considered were supported by credible evidence; and (3) the sentence is not so "clearly unreasonable as to shock the judicial conscience." Ibid. See also State v. Jarbath, 114 N.J. 394, 401 (1989); State v. Sainz, 107 N.J. 283, 292 (1987). We find no such error here. We necessarily reject defendant's argument that because the crimes all occurred during a single evening and resulted, in part, from his conspiratorial liability for the acts of others, some known and most unknown, that the Yarbough guidelines were violated.
The problem is, as we have frequently observed, that while aware of NERA, some judges seem oblivious or indifferent to its real-time consequences. Despite Judge Pressler's observations in State v. Marinez, 370 N.J. Super. 49, 57-59 (App. Div.), certif. denied, 182 N.J. 142 (2004), draconian NERA sentences continue to abound. Defendant was in his mid-twenties when he committed these offenses; he will be in his mid-sixties when he becomes eligible for parole. Essentially, a life sentence was imposed. That defendant faces such dire consequences could well and fairly be attributed to his own conduct. Certainly, the conscientious trial judge is not at fault. As we noted, he properly balanced the aggravating and mitigating factors and complied with Yarbough by providing reasons for imposition of consecutive sentences. And the Legislature is not to be faulted for seeking to deter violent crimes and to bring New Jersey in line with federal sentencing guidelines which eliminated parole, resulting in only a reduction in a sentence of about fifteen-percent for good behavior.*fn1 It is, however, the interaction of these cross-currents that results, as here, in sentences that once would have been considered acceptable only for murder.
In a case such as this, our hands are truly tied. The only way to modify defendant's sentence would be to order that groups one and two run concurrent, as defendant requests. However, given the constraints on our power of review and the careful way in which the judge followed Yarbough, our intervention is unwarranted. What is required is further guidance from the Supreme Court, as to how NERA should affect sentencing considerations generally and, in particular, consecutive sentencing under Yarbough.