April 5, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS HERNANDEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-03-0323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010
Before Judges R. B. Coleman and Lihotz.
Defendant Luis Hernandez appeals from the sentences imposed following our remand for re-sentencing. Again, we are constrained to reverse after concluding the sentences imposed, although within the statutory maximum, were not adequately supported N.J.S.A. 2C:44-7, and the trial court's exercise of discretion is "clearly mistaken." State v. Kromphold, 162 N.J. 345, 355 (2000). See also State v. Roth, 95 N.J. 334, 364 (1984) (holding appellate courts may disturb a sentence found to be "a clear error of judgment").
The charges arose after a routine traffic stop at approximately 10:00 a.m. Although defendant initially obeyed the police officer's signal to pull over, he then sped away stating he panicked because his driving privileges were suspended. The motorcycle traffic officer gave chase. He did not follow defendant but took an alternate route to cut him off. While speeding through residential streets, defendant stated he was looking over his shoulder to see if the officer was behind him when he ran a stop sign and "T-boned" the officer's motorcycle, which had entered the intersection on the cross street. Defendant agreed to provide samples of blood and urine after being advised he had the right to refuse. The police officer was thrown from his bike, crashed into the windshield and hood of a parked van, and landed in a nearby garden. The officer died from "[m]ultiple blunt traumatic injuries" sustained in the accident.
Following the collision, defendant attempted to flee on foot, but was captured by members of the public. Upon arrest, defendant was taken to the hospital for treatment. He consented to submit blood and urine samples, admitting he had snorted "three dime bags" of heroin at 1:00 a.m. and that his driver's license was suspended.
Defendant was convicted by a jury of first-degree death by auto within 1000 feet of a school, N.J.S.A. 2C:11-5(b)(3) (count one); third-degree leaving the scene of a motor vehicle accident resulting in death while his driver's license was suspended, N.J.S.A. 2C:11-5.1 (count two); third-degree operating a motor vehicle involved in a motor vehicle accident resulting in death while his driver's license was suspended, N.J.S.A. 2C:40-22(a) (count three); first-degree aggravated manslaughter, causing death during an eluding, N.J.S.A. 2C:11-4(a)(2) (count four); second-degree eluding, N.J.S.A. 2C:29-2(b) (count five); and third-degree endangering an injured victim by leaving the scene of an accident, N.J.S.A. 2C:12-1.2(a) (count six).
During sentencing, the trial judge determined defendant was eligible for a discretionary extended-term sentence as a persistent offender under N.J.S.A. 2C:44-3(a) on count one. The court merged count five into count four and sentenced defendant to a term of life in prison,*fn1 with the mandatory period of parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one; five years imprisonment on count two, the term to run consecutively to the sentence imposed on counts one and four; five years on count three, the term to run concurrently to the sentence imposed on counts one and four; twenty years, subject to NERA's eighty-five percent parole ineligibility period on count four, the sentence to run concurrently to that imposed on count one; five years on count six, to run consecutively to counts one and four but concurrent to count two. The court permanently revoked defendant's driving privileges and imposed applicable fines and penalties.
Defendant appealed from his conviction and sentence. In our unreported opinion, we affirmed defendant's conviction but remanded for re-sentencing, stating "the sentences imposed for counts two, three and six exceed the previous presumptive terms for third[-]degree convictions and the court's reasons for imposing maximum terms are not clear." State v. Hernandez, No. A-1280-05 (App. Div. August 6, 2007) (slip op. at 17). On remand, the trial judge imposed the same sentence. Defendant again appealed from the determination.
Our role in reviewing a trial judge's sentence is a limited one. We do not "substitute [our] judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the court has "adhered to the sentencing principles set forth in the Code and defined in our case law," and its findings of aggravating and mitigating factors are supported by the record, "its discretion should be immune from second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010). We will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364-65.
On appeal, defendant argues that "the sentence imposed is manifestly excessive and merger should have been ordered." Specifically, defendant urges merger of the three homicide offenses and also identifies errors in the court's factfinding, which he suggests require reversal. Defendant suggests the trial judge:
(1) accorded far too much weight to defendant's prior record; (2) failed to distinguish between prior convictions [that] triggered the extended-term sentence and those  used to set the length of that term, thereby engaging in double-counting; (3) failed to properly take into account that defendant's death-by-auto conviction had already been enhanced by statutory aggravation and then further by the imposition of an extended term before being elevated all the way to the maximum term of life . . . ; (4) failed to adequately credit defendant, in a qualitative sense, for his cooperation with the State; (5) failed to explain adequately how defendant warrants a sentence that is, ordinarily, the maximum for purposeful and knowing murder, when it is clear from these facts, and the lack of indictment for a more serious homicide offense, that not even the State believed this to have been more than a reckless offense; [and] (6) failed to explain how maximum terms were suitable for some offenses when only a midpoint sentence was given for aggravated manslaughter.
We first examine whether the offenses should have been merged. Defendant contends the three homicide offenses in counts one, three and four arise from the same facts yet "only one act of homicide occurred here," not three, and therefore merger applies.
In addressing questions of merger, we have recognized that merger is rooted in the established principle that an accused who has committed only one offense cannot be punished as if for two. State v. Dillihay, 127 N.J. 42, 48 (1992) (internal quotation marks and citations omitted).
We follow a flexible approach in merger issues that requires us to focus on the elements of the crimes and the Legislature's intent in creating them, and on the specific facts of each case. The overall principle guiding merger analysis is that a defendant who has committed one offense cannot be punished as if for two. Convictions for lesser-included offenses, offenses that are a necessary component of the commission of another offense, or offenses that merely offer an alternative basis for punishing the same criminal conduct will merge. [State v. Brown, 138 N.J. 481, 561 (1994) (internal quotation marks and citations omitted), overruled on other grounds, State v. Cooper, 151 N.J. 326 (1997).]
Nevertheless, "a single criminal episode can be dissected into chronologically discrete offenses," requiring our analysis to focus on the elements of each crime. State v. Fraction, 206 N.J. Super. 532, 537 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986). See State v. Smith, 197 N.J. 325, 332 (2009) ("Because the wording used by the Legislature provides the most direct path toward understanding legislative intent, we examine the plain language of the statute and ascribe to the words their ordinary meaning."). See also N.J.S.A. 2C:1-14(h) (defining elements of offenses).
Criminal homicide is defined in N.J.S.A. 2C:11-2(a) and specifically includes death by auto, N.J.S.A. 2C:11-2(b). Death by auto occurs when an actor drives a vehicle recklessly. N.J.S.A. 2C:11-5(a). Vehicular homicide was upgraded to a second-degree offense by L. 1995, c. 285, and upon conviction, the statute mandates a minimum term of imprisonment if the actor was operating the vehicle while under the influence of any intoxicating liquor or narcotic or while his or her driving privileges were suspended. N.J.S.A. 2C:11-5(b)(1). Moreover, the second-degree offense turns into a first-degree offense when the operator was driving while intoxicated, as prohibited by N.J.S.A. 39:4-50, within 1000 feet of school property. N.J.S.A. 2C:11-5(b)(3)(a).
Pursuant to N.J.S.A. 2C:11-4(a), criminal homicide constitutes aggravated manslaughter when "(1) [t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life; or (2) [t]he actor causes the death of another person while fleeing or attempting to elude a law enforcement officer in violation of . . . N.J.S.[A.] 2C:29-2[b]." In State v. Curtis, 195 N.J. Super. 354, 364 (App. Div.), certif. denied, 99 N.J. 212 (1984), we identified what distinguishes aggravated manslaughter from manslaughter, noting the variance is the degree of risk. Aggravated manslaughter includes the additional element that death be caused "under circumstances manifesting extreme indifference to human life[,]" elevating the risk level from a mere possibility to a probability. N.J.S.A. 2C:11-4(a)(1). Aggravated manslaughter is a crime of the first degree. N.J.S.A. 2C:11-4(c).
When a death results from the operation of a vehicle, each of these two offenses may be applicable. The pre-1995 version of the death by auto statute reflected the Legislature was cognizant that the same unlawful conduct while operating a motor vehicle could overlap with a charge of manslaughter. Former subsection (d) of N.J.S.A. 2C:11-5 provided that "[i]f an indictment for manslaughter is brought in a case involving the operation of a motor vehicle . . . death by auto . . . shall be considered a lesser-included offense." Following the 1995 amendments, increasing the degree of a death by auto offense from third- to second-degree, subsection (d) was amended. It now provides: "Nothing herein shall be deemed to preclude, if the evidence so warrants, an indictment and conviction for aggravated manslaughter under . . . N.J.S.[A.] 2C:11-4[(a)]."
The offenses are similar in that they are both criminal homicides and require proof of reckless conduct. State v. Bakka, 176 N.J. 533, 544 (2003). However, proof of the other elements of each offense differs.
Here, defendant's vehicular homicide conviction entailed his operation of a motor vehicle, causing the death of the police officer. The death was caused by defendant's reckless*fn2 operation of the motor vehicle and the death occurred within a school zone. Proof of recklessness, as applied here, includes that defendant was driving under the influence of drugs or alcohol or driving while his license was suspended. N.J.S.A. 2C:11-5(a). See also State v. Stanton, 176 N.J. 75, 96 (discussing the elements of second-degree death by auto), cert. denied sub nom. Stanton v. New Jersey, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003).
Additionally, defendant was convicted of aggravated manslaughter, which entails causing a death while attempting to elude a law enforcement officer. N.J.S.A. 2C:11-4(a)(2). Aggravated manslaughter under this paragraph is a crime of the first-degree. N.J.S.A. 2C:11-4(c).
The State argues the statutes, particularly N.J.S.A. 2C:11-5(d), create separately punishable offenses, precluding merger. In our review, we determine the statute neither permits nor precludes multiple convictions if the culpable conduct evinces each offense. The statutory language does not mandate an intention to punish separate offenses arising from the same conduct. The amendment to N.J.S.A. 2C:11-5(d) may simply signal the fact that death by auto was made a second-degree offense, equaling the degree of reckless manslaughter, thus giving the State an option to charge either offense.
We agree, however, that merger of these two offenses is not mandated. In such instances, the normative choice is to impose concurrent rather than consecutive sentences. The trial court followed this procedure making the sentence for count four concurrent to the sentence in count one. We discern no basis to modify that determination.
The other offense defendant suggests must merge with the death by auto conviction is third-degree causing death while an actor's driving privileges were suspended. N.J.S.A. 2C:40-22(a). We agree.
The elements of N.J.S.A. 2C:40-22(a) include operating a motor vehicle while one's driving privileges were suspended and being involved in a motor vehicle accident resulting in the death of another. Ibid. Each of the elements of N.J.S.A. 2C:40-22(a) is subsumed in the elements of N.J.S.A. 2C:11-5(b)(1). The difference is the additional element of recklessness necessary to prove death by auto. Accordingly, the conviction for count three should have been merged with count one.
Next, we review defendant's challenge to the court's imposition of a discretionary extended term sentence on count one. Defendant challenges the applicability of the extended term to an offense already enhanced because the conduct occurred within a school zone and otherwise challenges the court's determination to impose the maximum sentence of life imprisonment.
The trial court first analyzed whether defendant was extended term eligible. The statute, N.J.S.A. 2C:44-3(a), affords the sentencing court the discretion to impose an extended term sentence upon a finding that the defendant qualifies as a "persistent offender," which is defined as a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced. [N.J.S.A. 2C:44-3(a).]
The Code provided no further standard to guide the court when determining whether to impose a sentence within the extended- term range. The Supreme Court has filled this gap. See State v. Pierce, 188 N.J. 155, 167 (2006); State v. Dunbar, 108 N.J. 80, 91 (1987), modified in part by Pierce, supra, 188 N.J. at 167.
Once the court has concluded a discretionary extended term sentence is legally permissible, it must then identify the range of sentences available for imposition. As the Supreme Court noted in Pierce, supra, "the range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." 188 N.J. at 169. Even though the maximum applicable sentence for a persistent offender is the top of the extended-term range, the trial court is not mandated to sentence a defendant within the enhanced range, but may sentence anywhere within the minimum of the ordinary-term range up to the maximum of the extended-term range. Ibid.
"Where, within that range of sentences, the court chooses to sentence a defendant remains in the sound judgment of the court--subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found." Ibid. In determining the length of an appropriate sentence, a trial judge must "use the full range of sentences opened up to the court," which "is a function of the court's assessment of the aggravating and mitigating factors[.]" Id. at 168-69. Finally, the court must determine any period of parole ineligibility.
In our review, we apply an abuse of discretion standard to the sentencing court's explanation for its sentencing decision within the extended range. Id. at 169-70. The determination will be reviewed for reasonableness. Ibid. See also Roth, supra, 95 N.J. at 364-66 (holding that appellate review of a sentence requires examination of whether correct legislative standards or guidelines have been followed, review for substantial evidence in record to support findings, and determination whether sentence "shocks the judicial conscience").
As noted above, death by auto is generally a second-degree offense. In 1999, the Legislature responded to a specific concern and raised the degree when the incident occurs within 1000 feet of school property. See L. 1999, c. 185, § 1. We do not agree with defendant's suggestion that the statutory enhanced sentence is exempt from further enhancement if a defendant is found to be a persistent offender. The application of the latter is directed to the court's discretionary assessment of a defendant's repeated criminality.
Here, the trial judge determined defendant qualified as a persistent offender, defined by N.J.S.A. 2C:44-3(a), and that an extended term should be imposed, stating:
Given the fact that the defendant has had six convictions and considering the offenses for which he's been convicted, the sentences that were imposed on those prior matters, I'm satisfied today, as I was at the time that I imposed the original sentence on August the 26th, 2005, that on Count 1, death by auto, a first-degree offense in violation of [N.J.S.A.] 2C:11-5[(b)(3)], that the defendant should be sentenced to the term on an extended term at the highest possible range that I can impose, that being life in prison, with a five-year period of parole supervision . . . .
Pursuant to N.J.S.A. 2C:43-7.2, solely for the purpose of calculating the minimum term of parole ineligibility, a sentence of life in prison shall be deemed to be 75 years, the equivalent of 63 years and 9 months. .
I've made my decision to sentence him to an extended term of imprisonment based upon his prior record. In evaluating the actual quantum of sentencing posed, and determining that he falls in the highest range for sentencing purposes, and that the maximum sentence should be imposed.
To support his decision fixing the length of the sentence, the trial court found aggravating factors, N.J.S.A. 2C:44-1(a)(3) (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he had been previously convicted) and N.J.S.A. 2C:44-1(a)(9) (the need for deterring the defendant and others from violating the law). He acknowledged one applicable mitigating factor, N.J.S.A. 2C:44-1(b)(12), based on defendant's willing cooperation with law enforcement once apprehended.
Weighing these factors, the court made these findings:
With regard to the  aggravating factors on a . . . qualitative basis, I find on a scale of 1 to 10, with 10 being the highest negative rating, 1 being the lowest, that the -- on a qualitative basis, each of these aggravating factors are of the 10 range. They are the -- the most serious aggravating factors in terms of conduct that's measurable. So he's at the high in -- high end range of negative conduct for all human behavior as to each of these aggravating factors.
As to the mitigating factor that does apply, I find, as I did at the time of the original sentencing, that the defendant is entitled to the benefit of only one mitigating factor and that is Number 12, his willingness to cooperate with law enforcement authorities.
On . . . a quantitative basis, I find that it's only by an absolute barest minimum that I would -- that I find that that factor applies. The . . . factor itself deals with, essentially, post-arrest. Once he was apprehended, he essentially cooperated with law enforcement authorities and did give statements, all of which resulted in the admission of evidence against him at the time of trial leading to his conviction.
To the extent that he gave law enforcement any cooperation . . . in facilitating his own prosecution, . . . I'd give him the most basic rating on that finding, then. And on . . . a scale of 1 to 10, with 1 being the lowest, 10 being the highest, I'd give him . . . a score of 1.
I am satisfied that the aggravating factors clearly and convincingly establish, substantially and overwhelmingly, that they outweigh the sole mitigating factor in fixing the appropriate sentence on this defendant that I have just imposed.
I am satisfied that the defendant should be sentenced to the extended term of imprisonment for the reasons that I've stated, in that the defendant is a hopeless recidivist who has not been deterred by sanctions which have gradually increased over time.
These comments reflect the court was "clearly convinced" that the aggravating factors "substantially outweighed" the mitigating ones.
The sentences for the remaining non-merged convictions were similarly informed. The trial judge imposed the maximum sentence of five years for defendant's conviction of the third-degree offenses on counts two, three,*fn3 and five and twenty years for the aggravated manslaughter conviction. In concluding themaximum sentence was appropriate for each of these offenses, the trial judge stated:
To me, it would be logically inconsistent to sentence the defendant to anything less than the maximum when I've already made a determination that he . . . should receive the maximum . . . of [a] life sentence on Count 1. If I were to impose anything less, it would . . . be completely inconsistent with the analysis that I was required to undergo in reaching the determination on Count 1 that a life sentence should be imposed.
As we noted, we are bound to affirm a sentence if the trial court follows the sentencing guidelines. This is not a mechanical function. Our review must examine whether factual underpinnings relied upon by the court are supported by the record and focus on the overall fairness of the sentence, assuring the Code's general purposes governing sentencing, including the need to "safeguard offenders against excessive, disproportionate or arbitrary punishment[.]" N.J.S.A. 2C:1-2b(4). Thus, we "'are expected to exercise a vigorous and close review for abuses of discretion by the trial courts.'" State v. Jarbath, 114 N.J. 394, 401 (1989) (quoting Roth, supra, 95 N.J. at 364). Accordingly, we need not affirm a trial court's incorrect or unsupported application of the guidelines or one that makes a particular sentence so clearly unreasonable it shocks the judicial conscience. Bieniek, supra, 200 N.J. at 608; State v. Cassady, 198 N.J. 165, 180 (2009).
As we did in our original review, we again conclude the court has failed to properly articulate the basis for imposing an extended term sentence and the maximum punishment on each sentence.
It is appropriate to first detail defendant's criminal history. We do so because throughout sentencing the trial judge repeatedly emphasized what he characterized as defendant's "lengthy criminal history."
Defendant had no juvenile adjudications and one 1985 municipal conviction for possession of CDS. From age twenty-one, he was convicted six times for five third-degree drug offenses (1985 for possession of a controlled dangerous substance (CDS) with intent to distribute; 1986 possession of CDS with intent to distribute; 1990 possession of CDS with intent to distribute within 1000 feet of a school property; and two 2001 convictions for possession of a CDS, each in a separate date). He also has a 1994 conviction for burglary*fn4 and theft. The current offenses occurred in 2003.
We turn to our analysis of the sentence imposed for vehicular homicide. Three convictions, those for burglary and possession of CDS, fell within the ten year period delineated by N.J.S.A. 2C:44-3(a), making defendant extended-term eligible. The trial judge correctly examined defendant's criminal history and determined he had the statutorily required number and type of prior convictions to be eligible for sentencing up to the maximum of the mandatory enhanced first-degree range of twenty years to life imprisonment.
The court then decided to grant the request for an extended term sentence stating only "I've made my decision to sentence him to an extended term of imprisonment based upon his prior record." Understanding that this determination "is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public," Pierce, 188 N.J. at 168, we conclude the court's findings relying upon defendant's past criminal conduct and the inability of previously imposed sanctions, including a state prison sentence, to deter future criminal conduct, were adequate to support the trial court's determination that an extended term sentence was appropriate.
We cannot reach the same conclusion after examining the findings offered to support the length of the sentences imposed.
We again note this matter was remanded after appeal because the factual basis supporting the imposition of the maximum sentences was not initially provided. Unfortunately, on remand the trial judge did not enhance his findings as directed. See State v. Miller, 108 N.J. 112, 122 (1987) (holding that "[t]he focus should be on the fairness of the overall sentence, and the sentencing court should set forth in detail its reasons for concluding that a particular sentence is warranted"). We identify the deficiencies.
First, with respect to the sentence on count one, the trial court at no time recognized the range of a permissible sentence started at the bottom of the first-degree range, of ten to twenty years, N.J.S.A. 2C:43-6(a)(1), and extended up to life imprisonment. The trial judge considered only imposing a life sentence, a term he did not justify.
Second, we have grave concerns about whether the length of the sentence imposed can be justified on this record. The trial judge stated defendant "falls in the highest range for sentencing purposes[,]" because he had committed "a graduated series of offenses over a period of time . . . increasing in criminality" and was "a hopeless recidivist who has not been deterred by sanctions which have gradually increased over time." This finding permeated the trial judge's determinations, but it is not supported by the record. Instead, defendant's record reflects the seriousness of his offenses has diminished since his 1994 incarceration for burglary. His most recent offenses occurred in 2000 for drug possession. Without minimizing the seriousness of any of defendant's crimes, we observe the court inaccurately characterized the nature of defendant's record.
Third, the court afforded absolute weight to the aggravating factors but never explained why each was weighted in such a way, other than attaching overarching significance to defendant's recidivist behavior. Again, we note the most serious offense defendant had committed was the burglary, which occurred eleven years prior to the instant offenses. We also note defendant's criminal conduct did not include violent offenses and his prior convictions were reflective of his drug addiction. The trial judge ignored our prior directive to fully explain the basis for imposing the term for each sentence.
The trial court only stressed defendant's criminal history. Our review of that history, as set forth above, shows a decrease in the frequency as well as the nature of the offenses, making defendant's past criminality not so remarkable that it could support a conclusion to impose the maximum sentence on each and every conviction.
Fourth, after finding the most commonly imposed aggravating factors, 3, 6, and 9, and no others, the trial judge never explained his "qualitative" assessment that "each of these aggravating factors are of the 10 range" on a scale of one to ten. Again, the court's comments reiterated those regarding defendant's criminal history, which we have noted was unsupported by the credible evidence in the record. Consequently, the trial judge's weighing and balancing of the aggravating factors cannot serve as the justification for the longest sentence allowed by the Code.
Finally, the trial court's suggestion that imposition of a maximum term for one offense warrants similar treatment for all others is inappropriate.
Despite our desire to avoid a third resentencing, we are constrained to remand as we cannot substitute our judgment for that of the trial court. State v. Thomas, 195 N.J. 431, 437 (2008). Despite our frustration with the inadequacy of the sentencing record, we follow the Supreme Court's direction that "'a remand to the trial court for resentencing is strongly to be preferred.'" Ibid. (quoting Jarbath, supra, 114 N.J. at 410-11).
We reverse and remand the matter to the trial judge for a third time. The court must amend the judgment of conviction to reflect the merger of count three with count one. The court is also instructed to re-examine the record and fix the length of each sentence after properly identifying those facts found in the record to support the determination. The trial judge shall amplify his reasons for imposing an extended term on count one, and reset the terms for each conviction, fully explaining how and why the term was set within the applicable sentencing range. The trial court must remain mindful that "there can be no justice without a predictable degree of uniformity in sentencing." State v. Hodge, 95 N.J. 369, 379 (1984).
Reversed and remanded for re-sentencing.