On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-07-1035.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2011 -
Before Judges Fuentes and Harris.
Defendant Lawrence Traylor was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)6), and sentenced to a prison term of five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Prior to sentencing, Traylor filed a pro se motion*fn1 seeking leniency due to what he described as the "shameful" conditions of the Passaic County Jail, the penal facility in which he was incarcerated since March 28, 2008.
Specifically, he sought to be awarded "an extra day jail credit for every day served in Passaic County Jail." The Law Division imposed a sentence in accordance with the plea arrangement, and awarded 581 days of credit for time spent in custody pursuant to Rule 3:21-8. Traylor now appeals, urging that he was entitled to twice the number of jail credits because his pre-judgment confinement in the Passaic County Jail amounted to cruel and unusual punishment, and that he was entitled to equal treatment with certain federal detainees who were housed in the Passaic County Jail who received such consideration in federal court when they were sentenced in 2007. We find no authority under our State's sentencing framework for the relief sought by Traylor, and we affirm.*fn2
On appeal, Traylor reprises the claims raised in his pro se motion, presenting the following single argument:
POINT I: THE TRIAL JUDGE'S FAILURE TO GRANT DEFENDANT'S MOTION FOR LENIENCY BASED UPON THE DEPLORABLE CONDITIONS AT THE PASSAIC COUNTY JAIL VIOLATED THE CONSTITUTIONAL PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT. U.S. CONST. AMEND. VIII. A REMAND SHOULD BE ORDERED TO PERMIT DEFENDANT TO PROVE THAT HE SHOULD RECEIVE ADDITIONAL JAIL CREDITS OR A LESSER SENTENCE DUE TO THE JAIL CONDITIONS HE WAS FORCED TO ENDURE.
The factual basis for his assertion of the "deplorable conditions at the Passaic County Jail" and his legal authority for a two-for-one jail credit stem from two unpublished and non- precedential opinions*fn3 that emanate from the United States District Court for the District of New Jersey: (1) United States v. Sutton, No. 07-426, 2007 U.S. Dist. LEXIS 79518 (D.N.J. Oct. 25, 2007), (the district court granted a variance below the federal sentencing guideline range based on conditions in the Passaic County Jail) and (2) United States v. Ortiz, No. 06-858, 2007 U.S. Dist. LEXIS 87055 (D.N.J. Nov. 27, 2007).*fn4 Clearly, neither we nor the Law Division are bound by such determinations. See Albrecht v. Corr. Med. Servs., 422 N.J. Super. 265, 270 n.3 (App. Div. 2011) (rejecting the use of five unpublished federal district court opinions, holding that such unpublished opinions do not constitute precedent and are not binding).
Instead, "we are bound to follow the law as it has been expressed by a majority of the members of our Supreme Court." Lake Valley Assocs., LLC v. Twp. of Pemberton, 411 N.J. Super. 501, 507) (App. Div.), certif. denied, 202 N.J. 43 (2010). The law of sentencing under New Jersey law is plain:
As we have previously explained, the "[p]ronouncement of judgment of sentence is among the most solemn and serious responsibilities of a trial court. No word formula will ever eliminate this requirement that justice be done." State v. Roth, 95 N.J. 334, 365 (1984). As we have commented, "[t]he dominant, if not paramount, goal of the [New Jersey] Code [of Criminal Justice] is uniformity in sentencing." State v. Kromphold, 162 N.J. 345, 352 (2000). Most recently, we have explained that the goal of uniformity is "achieved through the careful application of statutory aggravating and mitigating factors." State v. Cassady, 198 N.J. 165, 179-80 (2009); see, e.g., N.J.S.A. 2C:44-1(a) (listing aggravating factors that must be considered); N.J.S.A. 2C:44-1(b) (listing mitigating factors that sentencing court may consider).
In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are "fully supported by the evidence."
State v. Dalziel, 182 N.J. 494, 504-05, (2005). Although there is more discretion involved in identifying mitigating factors than in addressing aggravating factors, those mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record. Ibid.; see State v. Bieniek, 200 N.J. 601, 609 (2010) (encouraging judicial practice of explicitly addressing each mitigating factor raised by defendant).
Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. See State v. Jarbath, 114 N.J. 394, 401 (1989). In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether "the factfinder [has] appl[ied] correct legal principles in exercising its discretion." Roth, supra, 95 N.J. at 363. Our traditional articulation of this standard uses language that limits a reviewing court's exercise of authority to those situations in which the application of the facts to the law has resulted in a clear error of judgment or a sentence that "shocks the judicial conscience." Id. at 363-65; see State v. O'Donnell, 117 N.J. 210, 215-16 (1989) (outlining principles of appellate review of sentencing decisions). Appellate courts are not permitted to substitute their judgment about a sentence they would have selected for the one ...