On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-07-1829.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 23, 2011*fn1
Before Judges Fisher and Grall.
Defendant Steven Chalakee pled guilty to second-degree endangering the welfare of a child by distributing child pornography, N.J.S.A. 2C:24-4b(5)(a), and fourth-degree endangering the welfare of a child by possessing child pornography, N.J.S.A. 2C:24-4b(5)(b). Defendant admitted to downloading pictures and videos depicting child pornography and sharing them with others via a peer-to-peer file-sharing application. Defendant's guilty plea called for the trial court to sentence him in its discretion, and defendant acknowledged that the crimes he was pleading guilty to carried a presumption of imprisonment.
The trial court sentenced defendant to a five-year suspended sentence on the distribution charge and a one-and-a-half-year suspended sentence on the possession charge, to run concurrently with the suspended sentence on the distribution charge. The trial court also required defendant to be subject to community supervision for life. Among the monetary fines, penalties and assessments imposed, the trial judge assessed a $500 Sex Crime Victim Treatment fund (SCVT) penalty and a $800 Sexual Assault Nurse Examiner program fund (SANE) penalty on the possession conviction.
In support of its sentence, the trial court described the nature of defendant's crimes and found that defendant: had acknowledged the illegality of his actions; appeared remorseful and apologetic during his presentence interview; had no prior known encounter with the law as an adult; had maintained consistent employment in the past; was an involved member of his community, volunteering with the local fire company; and had a strong family support system in place. The trial judge also found that defendant was a low risk to the community and that he would be amenable to community-based supervision.
Based on these factual findings, the trial court found as aggravating factors that there was a grave and serious harm inflicted on the children depicted in defendant's pornography collection and that there was a need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(2), (9). It also found as mitigating factors that defendant did not contemplate that his acts would cause serious harm; that defendant had no prior criminal history; that the character of defendant was such that it was unlikely that he would commit another offense; and that he was particularly likely to respond affirmatively to probationary treatment. N.J.S.A. 2C:44-1b(2), (7), (9), (10). The court concluded, however, that the aggravating and mitigating factors were in equipoise.
The State appeals, N.J.S.A. 2C:44-1f(2), arguing that the trial judge improperly sentenced defendant to a non-custodial term. We agree.
A trial court "shall" sentence a person who has been convicted of a second-degree crime "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. Although N.J.S.A. 2C:43-2(b) states that "the court may suspend the imposition of sentence on a person who has been convicted of an offense," that provision "does not itself give the court the power to suspend sentence." State v. Roth, 95 N.J. 334, 357 (1984). Instead, "a sentencing court must first turn to" N.J.S.A. 2C:44-1d and its presumption of imprisonment. Ibid. If the presumption applies and is not overcome, the trial court may not impose a suspended sentence. See id. at 358-59.
Here, although the trial court acknowledged that the presumption of imprisonment applied, it did not elucidate how imprisonment would be a serious injustice to defendant or how that serious injustice overrode the need to deter similar conduct by others. This alone would require reversal. But additionally, the trial court's own factual findings - which are not contested by defendant - are contrary to its ultimate conclusion that the presumption of imprisonment was overcome.
The judge found that the aggravating and mitigating factors in defendant's case were in equipoise. The judge therefore necessarily found that there was no predominance of mitigating factors, a necessary, though not sufficient, finding before the judge could find that a "serious injustice" would be done by defendant's imprisonment. See N.J.S.A. 2C:44-1f(2) (allowing the trial judge to downgrade a second-degree offense where "the mitigating factors substantially outweigh the aggravating factors"); State v. Evers, 175 N.J. 355, 389 (2003) (holding that "the reasons offered to dispel the presumption of imprisonment must be even more compelling than those that might warrant downgrading an offense"). The judge's uncontested findings compel him to sentence ...