The opinion of the court was delivered by: Justice LaVECCHIA
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.)
State v. Sally A. McDonald
Argued September 12, 2011
[NOTE: This is a companion case to State v. Kevin Jerome Hudson, also decided today.]
LaVECCHIA, J., writing for a majority of the Court.
In this companion case to State v. Kevin Jerome Hudson, which also was decided today, the Court again considers the application of N.J.S.A. 2C:44-5(b) to a situation in which the defendant received a second extended-term sentence in a separate proceeding from the one in which the first extended-term sentence was imposed.
On August 21, 2006, defendant Sally A. McDonald was indicted on charges of second-degree theft by deception for conduct occurring on various dates from late 2000 to January 2006, and fourth-degree forgery for conduct occurring on various dates in 2003 through January 2006. The charges related to McDonald's conduct in borrowing $1.7 million from the victim under the pretense that she would use the money to buy a horse farm. Instead, McDonald used the money for her own purposes. When the victim sought repayment, McDonald presented him with false documentation and information to support her claim that the money had been frozen by the courts. In creating the fraudulent documents, McDonald forged the signatures of a public defender and a judge. She also issued bad checks and doctored bank statements to create the impression of a positive bank balance.
In pleading guilty to the charges, McDonald acknowledged that she was subject to a discretionary extended term on the second-degree theft-by-deception charge. She also acknowledged that, with the extended term, she faced a maximum on the two offenses of twenty-one-and-one-half years and that the sentence could be consecutive to a sentence she was presently serving, in which she also had received an extended term.
At sentencing on August 8, 2008, the State moved for a discretionary extended-term sentence. The judge concluded that McDonald qualified for an extended term and that the range of sentence on McDonald's second-degree offense was between five years (bottom of the ordinary-term range) and twenty years (top of the extended-term range). The judge reviewed McDonald's "deplorable" prior criminal record, determined her to be a danger to the public, found multiple aggravating factors and no mitigating factors, and decided that a consecutive sentence was appropriate because the present crime was separate from the crimes for which McDonald was serving prison terms. On the second-degree theft-by-deception charge (Count One), the court imposed an extended-term sentence of twelve-years with a six-year period of parole ineligibility to run consecutively to the sentences McDonald was presently serving. On the fourth-degree forgery charge (Count Six), the court imposed an eighteen-month term to run concurrently with Count One. The Appellate Division affirmed. The Supreme Court granted McDonald's Petition for Certification. 205 N.J. 79 (2011).
HELD: For the reasons expressed in State v. Hudson, also decided today, the majority of the Court adheres to a plain-meaning reading of the language of N.J.S.A. 2C:44-5(b)(1), and finds that the sentencing court erred by imposing an extended-term sentence on defendant Sally A. McDonald for an offense that she pled guilty to second in time but that was committed earlier than the imposition of the extended-term sentence that she presently is serving.
1. The Court first examines McDonald's prior convictions and sentences, which included three Municipal Court convictions and nine Superior Court convictions. The Superior Court convictions all related to bad checks or theft offenses and all involved different victims. McDonald was sentenced on five occasions for those earlier convictions, including on September 7, 2007 for two counts of third-degree bad checks and one count of third-degree theft of services between May and July 2006. On one of the bad check counts, McDonald received an extended-term sentence of eight years with a three-year period of parole ineligibility. The other September 7, 2007 sentences ran concurrently with the extended-term sentence. In sum, due to the prior indictments, and the sentence at issue in this case that adds to the sentence she was serving, McDonald's aggregate sentence is twenty years with a nine-year parole disqualifier. (Pp. 6-8)
2. For the reasons expressed in State v. Hudson, the majority of the Court adheres to a plain-meaning reading of the language of N.J.S.A. 2C:44-5(b)(1), compelling the conclusion that it was legal error to have imposed a second extended-term sentence on McDonald for an offense that she pled to second in time but that was committed earlier than the imposition of the extended-term sentence she presently is serving. The timing and sequence of McDonald's offenses and sentencing bring her under the provision's literal application; therefore, the proscription against multiple extended-term sentences, incorporated from N.J.S.A. 2C:44-5(a) through subsection b, applies. McDonald's extended-term sentence must be reversed. (pp. 8-9)
3. During McDonald's resentencing, the Court leaves it to the sentencing court's discretion whether to augment the reasoning for imposing a consecutive sentence. More, rather than less, of an explanation is always of assistance to the parties and any reviewing court. The aggravating and mitigating factors will, of necessity, require reexamination in the resentencing. (pp. 9-10)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for resentencing.
JUSTICE PATTERSON, DISSENTING, joined by JUSTICE HOENS and JUDGE WEFING (temporarily assigned), maintains that the Legislature intended to grant sentencing courts limited discretion in imposing extended-term sentences. She points out that, without such discretion, the sentencing court will not be permitted to impose an extended term for the most serious of McDonald's many offenses, resulting in a significant advantage over comparable defendants whose crimes are sentenced in one proceeding.
CHIEF JUSTICE RABNER and JUSTICES LONG and ALBIN join in JUSTICE LaVECCHIA's opinion. JUSTICE PATTERSON filed a separate, dissenting opinion in which JUSTICE HOENS ...