May 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
JOWARNA ZAMOR, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-05-1514.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 6, 2011
Before Judges Ashrafi and Nugent.
The State appeals pursuant to N.J.S.A. 2C:44-1f(2) from the non-custodial sentence imposed upon defendant Jowarna Zamor on her plea of guilty to a second-degree crime. We reverse and remand to the Law Division for reconsideration of the sentence and a detailed explanation of its findings and conclusions.
Defendant was indicted on charges of third-degree possession of a weapon, N.J.S.A. 2C:39-5c(1), (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, (count two); second-degree eluding the police, N.J.S.A. 2C:29-2b, (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a, (count four). She entered into a plea agreement with the State by which she pleaded guilty to counts one and three, possession of a weapon and eluding. The State agreed to dismiss the other charges and to recommend a sentence of three years' imprisonment, the low end of the third-degree range of sentencing. At the sentencing hearing, the judge departed from the State's recommendation and sentenced defendant to a non-custodial term of five years' probation.
Defendant admitted the following facts under oath at her plea hearing on June 11, 2010. On November 12, 2008, defendant drove her car at a high rate of speed to flee from the police, and she did not stop until the car crashed. In the car were a shotgun that defendant knew had been fired earlier that evening and a man who fled from the scene of the crash and was never apprehended. Defendant identified that man as Frank Pierre and said he had fled to Haiti and may no longer be alive.
At the time of sentencing, the following additional facts were developed on the record and through the presentence investigation report. Defendant was twenty-three years old when the incident occurred, had no prior contacts with the criminal justice system, and had obtained certification as a medical assistant. She had hoped to continue her education in nursing school.
The incident that led to the criminal charges began when defendant became involved in a fight with several other young women. She claimed that one of the women had "jumped her." Defendant told others about the incident, and they urged her to take revenge. She and Pierre drove to a location in Irvington to confront the other young women. Pierre brought a shotgun, which defendant later admitted she fired. Irvington Police heard the gunshot and quickly obtained a description of defendant's car. When the police attempted to stop the car, defendant eluded them at a high rate of speed and eventually crashed into several cars. She and Pierre fled on foot from the car.
Later, defendant went to the Elizabeth Police station and reported that her car had been carjacked. When the police questioned her, she broke down and admitted her role in the offenses. She later gave a videotaped confession.
Defendant spent almost eight months in the county jail before being released on bail. At the time of her guilty plea a year later, defendant was pregnant. The judge informed her that her plea meant she would be returning to prison at the time of sentencing to complete the three-year term stipulated by her plea agreement. The judge agreed to delay sentencing for six months to allow defendant to give birth outside prison. The judge advised defendant that she would need to make arrangements for the care of her newborn and the two-year-old child she already had. The judge suggested that defendant provide funds for her mother to come from Haiti for that purpose and warned defendant that the Division of Youth and Family Services (DYFS) would take custody of the children during defendant's imprisonment if she did not make her own arrangements.
Defendant gave birth to twins in September 2010. She appeared for sentencing on December 3, 2010. Her attorney had submitted a sentencing memorandum to the judge seeking a non-custodial sentence, arguing among other points that defendant had no one to care for her three children. At the sentencing hearing, counsel argued further that defendant's mother had to return to Haiti to care for an ill relative after the Haiti earthquake. The father of the twins, with whom defendant was living, was also scheduled to be sentenced to prison within days, and he expected a sentence with five years' of parole ineligibility. Counsel argued that, because defendant had already spent eight months in jail before posting bail, and because, as a first offender, she would be eligible for parole from her three-year sentence after nine to ten months of custody, this was an "idiosyncratic" case that warranted exception from the presumption of incarceration for a second-degree crime. Counsel argued that if defendant were to be returned to prison to complete a short term of incarceration, DYFS would take custody of the children and defendant would be unlikely to regain custody for several months after her release from prison.
The State objected to a non-custodial sentence, arguing that it had already considered the mitigating circumstances and had made an unusually generous plea offer because of all those considerations. The State emphasized that defendant had confessed to serious crimes and that she could not credibly excuse her conduct because others urged it upon her. Defendant had faced conviction for a second-degree crime exposing her to a sentencing range of five to ten years' imprisonment and a mandatory period of three years' parole ineligibility as a Graves Act offense because a gun had been used in the commission of and flight from the crimes. See N.J.S.A. 2C:43-6c.
The court found that a number of mitigating factors outweighed the one applicable aggravating factor, the need for deterrence, N.J.S.A. 2C:44-1a(9). Although neither the court's oral statement at the time of sentencing nor the judgment of conviction listed aggravating and mitigating factors, our review of the sentencing record indicates that the court found the following mitigating factors applicable: defendant acted under strong provocation, N.J.S.A. 2C:44-1b(3); defendant had no history of prior criminal conduct or juvenile delinquency, N.J.S.A. 2C:44-1b(7); defendant's conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8); the character and attitude of defendant indicated she is unlikely to commit another offense, N.J.S.A. 2C:44-1b(9); imprisonment of defendant would entail excessive hardship to her dependents, N.J.S.A. 2C:44-1b(11); defendant cooperated with the police by confessing to the crimes, N.J.S.A. 2C:44-1b(12). The court made the following statement regarding its decision to impose a non-custodial sentence:
I find that she is an aberration, this does not follow her character, and I believe that the court, in such circumstances, does have the discretion to sentence her a degree lower . . . . I am giving her a probationary sentence, and it would - I think this would not be contrary to the interest of justice.
This statement was not sufficient to justify a non-custodial sentence for a second-degree crime that, under the Code of Criminal Justice, carries a presumption of imprisonment. See N.J.S.A. 2C:44-1d. The Code provides:
In cases of conviction for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which [defendant] was convicted. [N.J.S.A. 2C:44-1f(2).]
This statute by itself does not dispense with the presumption of incarceration for a second-degree crime. See State v. Jabbour, 118 N.J. 1, 7 (1990) (the presumption of imprisonment is not "overcome merely because the mitigating factors so outweigh the aggravating factors as to justify downgrading the offense").
The court can deviate from a sentence of imprisonment only if "it is of the opinion that [defendant's] imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1d.
In State v. Roth, 95 N.J. 334 (1984), the Supreme Court explained that the Code leaves "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 358 (quoting II Final Report of the New Jersey Criminal Law Revision Commission: Commentary 326). The Court stated that the "narrow exception" of N.J.S.A. 2C:44-1d "is met only in 'truly extraordinary and unanticipated circumstances.'" Ibid. (quoting Fair and Certain Punishment, Report of The Twentieth Century Fund Task Force on Criminal Sentencing (1976), at 21). The Court concluded that: "Absent a proper determination of 'serious injustice' considering the character and condition of the defendant, the trial court must impose a custodial sentence." Id. at 358-59 (quoting State v. Gerstofer, 191 N.J. Super. 542, 546-47 (App. Div. 1983), certif. denied, 96 N.J. 310 (1984)).
To justify imposition of a non-custodial sentence for a second-degree crime, the court must find "serious injustice" through the kind of analysis of the relevant facts discussed in State v. Jarbath, 114 N.J. 394 (1989). Here, the sentencing court appropriately found mitigating factors, and only one aggravating factor. Those findings justified downward departure of the sentence to the third-degree range. But the court made no additional finding that imprisonment of defendant at the lower end of that range would be a serious injustice. The court decided to deviate from the requirements of the Code because defendant had not made adequate arrangements and because the father of the children had also committed a serious crime and was about to be sentenced to prison. That decision is difficult to reconcile with the court's prior warning to defendant at the time of the plea that she must arrange for the care of her children while she completed her term of incarceration. The circumstances in this case do not rise to the level of the truly unique facts that prompted us and the Supreme Court to find "serious injustice" in a sentence of imprisonment in Jarbath.
Nevertheless, we are mindful that the Code grants "a residuum" of discretion to the sentencing judge to evaluate serious injustice and that our standard of review requires deference to the court's sentencing decision. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); Roth, supra, 95 N.J. at 364-66. The abuse of discretion standard applies to an appeal by the State, just as it does when a defendant challenges his sentence on appeal. See Gerstofer, supra, 191 N.J. Super. at 545.
Because the sentencing judge did not specifically address the applicable law, and because we cannot tell on this record whether the court fully considered the required statutory findings before imposing a non-custodial sentence, we remand to the sentencing court to reconsider defendant's sentence in conformity with this opinion and to set forth in greater detail its findings and conclusions. We do not state what sentence should be imposed but that a departure from the provisions of the Code should be fully explained.*fn1
Reversed and remanded for reconsideration of the sentence. We do not retain jurisdiction.