September 18, 2013
STATE OF NEW JERSEY, Plaintiff-Appellant,
RICHARD CHESLER, Defendant-Respondent
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-04-0943.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Michael D'Alessio, Jr., attorney for respondent.
Before Judges Harris and Guadagno.
In this appeal —— following a summary remand by the New Jersey Supreme Court —— the State challenges the Law Division's statement of reasons for the imposition of a custodial term of four years for second-degree vehicular homicide, N.J.S.A. 2C:11-5. Because we conclude that the stated rationale does not comport with N.J.S.A. 2C:44-1(f)(2), we reverse and remand for re-sentencing.
We gather the following from the indictment, plea hearing, and adult presentence investigation report related to this case.
On January 27, 2009, after a day of consuming between six and eight beers, then-seventeen-year-old defendant Richard M. Chesler got into his car, drove at almost twice the lawful speed limit, failed to stop at a stop sign on Parsonage Hill Road in Millburn, and struck another motor vehicle, resulting in its driver's death that same day. Chesler was charged with engaging in conduct which, if committed by an adult, would have constituted first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a).
On December 23, 2009, the Family Part referred Chesler's case to the Law Division pursuant to N.J.S.A. 2A:4A-26. Chesler was eighteen years old at the time of referral. On April 9, 2010, Chesler was indicted for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count one); second-degree vehicular manslaughter, N.J.S.A. 2C:11-5 (count two); and first-degree vehicular homicide committed within 1, 000 feet of a school, N.J.S.A. 2C:11-5(b)(3)(a)(b)(c) (count three).
On June 29, 2010, Chesler pleaded guilty to the second-degree vehicular manslaughter charge (count two), along with the associated traffic offenses of driving while intoxicated in a school zone and speeding. In exchange for entering into this arrangement, the State agreed to dismiss all of the remaining charges. The State indicated that it would recommend a term of imprisonment of no greater than seven years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At the plea hearing, defense counsel indicated the following:
[T]he defense intends to present letter memoranda to Your Honor concerning possible downgrade from second degree to third degree to be sentenced as a third. That's up to the court obviously, not the Prosecutor, and Your Honor has conditionally made an indication, but that depends on pre-sentence report and any other material that's presented to the Court.
The plea form included a "Supplemental Plea Form for Non-Negotiated Pleas, " which was signed by Chesler only, and stated:
If all conditions are met, sent[ence] will be [three years] without parole sent[enced] as [third-degree] offense with plea to [second-degree] offense.
On October 4, 2010, a different judge presided over the sentencing hearing due to the plea judge's recusal from the case. The sentencing judge indicated that he disagreed with the plea judge's proposed three-year sentence. The judge addressed Chesler directly, telling him,
I have had discussions with your attorney and I have indicated to him that the sentence that [the plea judge] had indicated he would give you, I would not probably give you. I have indicated to him what my thoughts were.
But sentencing you as you thought by [the plea judge], you do have the right to take back this guilty plea, plead not guilty again, go to trial, and anything you said during the course of the plea would not be held against you.
After confirming that he had discussed the matter with his attorney, Chesler (through defense counsel) indicated that he would proceed with the sentencing.
The State presented several victim-witness statements and argued for a seven-year term of imprisonment. Defense counsel argued for a term commensurate with a third-degree crime. Applying the two-pronged standard for imposing a downgraded sentence outlined in N.J.S.A. 2C:44-1(f)(2), the sentencing judge determined that the identified mitigating factors outweighed the aggravating factors. Thereafter, the judge summarily concluded that the interest of justice prong also was satisfied, and warranted a downgraded sentence. Thus, a four-year NERA term was imposed. The State's first appeal followed.
On March 10, 2011, we affirmed the judgment of conviction on an Excessive Sentencing Oral Argument (ESOA) calendar pursuant to Rule 2:9-11. We held that the downgraded sentence "comports with the standards articulated by the [C]ourt in State v. Megargel, 143 N.J. 484 (1996); State v. Balfour, 135 N.J. 30 (1994)."
On September 9, 2011, the Supreme Court granted the State's petition for certification and summarily remanded the case "to the trial court for a statement of reasons for imposing the downgraded sentence." Chesler, supra, 212 N.J. at 566. Jurisdiction was not retained. Ibid.
On August 13, 2012, a third Law Division judge held the remand hearing due to the sentencing judge's retirement. Similar to the sentencing judge, the remand judge found that the mitigating factors outweighed their aggravating counterparts. The judge stated, "The [sentencing] [c]ourt appears to have been clearly convinced, and this remand [c]ourt is clearly convinced, also, that these mitigating factors substantially outweigh the sole aggravating factor mentioned."
The remand judge also provided an explanation as to the "compelling reason satisfying the interest of justice demand for downgraded sentencing" as articulated in Megargel. Here, he found that Chesler's "inexperience of this not even yearling driver is inextricable from the context of the offense consisting of the accident." Relying upon "the circumstances advanced in the letter which [the court] previously mentioned by [defense counsel], which is adopted by the [c]ourt for purposes of expressing its reasons, " the remand judge found such to be "compelling reasons demanding the reduced sentence in the interest of justice." The remand judge then stated:
[W]hile the remand [c]ourt might, perhaps be inclined to impose a different sentence, perhaps a sentence greater, perhaps a sentence less, the order of the Supreme Court [on] remand did not direct and does not appear to permit another sentence [to] be imposed[, ] and directed only that the reason for the downgraded sentence be stated.
. . . .
The [Appellate Division] did not correct the [sentencing] [c]ourt. Even the Supreme Court does not correct the [sentencing] [c]ourt for the sentence but simply inquires for the reasons and this [c]ourt may or may not agree with the sentence originally imposed in this matter.
It is not for this [c]ourt to say, but the [c]ourt does set forth, as best it can, . . . the reasons that were in existence from what this [c]ourt can discern at the time that the downgraded sentence was imposed.
Because the remand judge rightly was constrained pursuant to the Supreme Court's remand mandate, he did not enter a new judgment of conviction, recognizing that "the only thing that this [c]ourt has done is place upon the record the reasons for the sentence previously imposed." This appeal followed.
The State presents the following argument for our consideration:
POINT I: DEFENDANT'S INEXPERIENCE AS A DRIVER AND THE STATE'S FAILURE TO OBJECT TO THE PLEA COURT'S PROPOSED SENTENCE ARE NOT COMPELLING REASONS MEETING THE INTEREST-OF-JUSTICE PRONG OF THE SENTENCING DOWNGRADE STATUTE. THIS TRAGEDY WAS CAUSED BY DEFENDANT'S RECKLESSNESS, NOT INEXPERIENCE, AND THE STATE CAN ONLY RECOMMEND A SENTENCE AND CANNOT WITHDRAW A PLEA OFFER IF A LOWER SENTENCE IS GIVEN.
After our review of the record, in light of the Court's remand for "a statement of reasons for imposing the downgraded sentence, " we are convinced that the reasons expressed for the downgraded sentence do not justify the four-year term.
N.J.S.A. 2C:44-1 generally addresses the criteria for withholding or imposing sentences of imprisonment. N.J.S.A. 2C:44-1(f)(2) provides, in relevant part, that
in cases of convictions 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 he was convicted.
A definitive interpretation of the "interest of justice" prong of N.J.S.A. 2C:44-1(f)(2) has generally eluded both trial and appellate courts. Indeed, "neither the legislative history nor the plain language of the statute provides any insight . . . nor does the language of the statute suggest those circumstances under which a downgraded sentence would be appropriate." Megargel, supra, 143 N.J. at 496. One thing is certain, however: "'[T]he standard governing downgrading is high.'" State v. Rice, 425 N.J.Super. 375, 384 (App. Div. 2012) (quoting Megargel, supra, 143 N.J. at 500).
Megargel provides the most comprehensive analysis of the interest of justice prong. "[I]n sentencing under [N.J.S.A. 2C:]44-1(f)(2), a court must apply the basic principles that are applicable to all sentencing decisions under the Code. It is therefore, paramount that the sentence reflects the Legislature's intention that the severity of the crime now be the single most important factor in the sentencing process." Megargel, supra, 143 N.J. at 500 (citing State v. Hodge, 95 N.J. 369, 379 (1984)). In evaluating the crime's severity, Megargel outlined several factors that trial courts must take into consideration when contemplating a downgraded sentence. First, sentencing courts must assess the
nature of and the relevant circumstances pertaining to the offense. Every offense arises in different factual circumstances. The surrounding circumstances of an offense may make it very similar to a lower degree offense, thus suggesting that a downgraded sentence may be appropriate.
[Megargel, supra, 143 N.J. at 500.]
Personal facts related to the defendant may also be taken into account. Megargel, supra, 143 N.J. at 501 (citing State v. Jarbath, 114 N.J. 394 (1989)).
Second, the imposition of downgraded sentences should be applied narrowly in circumstances where the defendant can provide "compelling" reasons for such a reduced sentence. Megargel, supra, 143 N.J. at 502 (citing State v. Jones, 197 N.J.Super. 604, 607 (App. Div. 1984)). The reasons advanced by the defendant "must be in addition to and separate from, the 'mitigating factors which substantially outweigh the aggravating factors, ' that the trial court finds applicable under the first prong of [N.J.S.A. 2C:]44-1(f)(2)." Ibid.
Third, "in those cases in which the Legislature has acted to provide an enhanced penalty for conviction of a particular offense, the downgrade of that offense requires more compelling reasons than the downgrade of an offense for which the Legislature has not attached an enhanced penalty." Ibid.
Last, "the trial court must clearly identify the relevant sentencing factors and describe how it exercised its discretion balancing these factors." Ibid. (citing State v. Kruse, 105 N.J. 354 (1987)). The court's balancing must be placed on the record along with an explanation as to "why sentencing the defendant to the lowest range of sentencing for the particular offense for which he was convicted, is not a more appropriate sentence than a downgraded sentence under [N.J.S.A. 2C:]44:1(f)(2)." Ibid.
The State contends that using Chesler's driving inexperience as the linchpin of the interest of justice prong of N.J.S.A. 2C:44-1(f)(2) was a misapplication of law. In the State's view, this misapplication amounts to an abuse of discretion because it "inexplicably departs from established sentencing policies, and rests on a misinterpretation of N.J.S.A. 2C:44-1(f)(2)."
We agree with the State that Chesler's inexperience in operating an automobile was not a significant and unique circumstance separate from mitigating factors that would require a downgraded sentence in the interest of justice. As the remand judge remarked, "it's a circumstance to take into consideration in uniquely viewing this driver and the circumstances that he found himself in and the contextual nature of this factor idiosyncratic to him as opposed to many, many other drivers."
However, in Megargel "the Court made it clear that, because the focus remains on the offense and not the offender, the surrounding circumstances used as compelling reasons for a downgrade should arise from within the context of the offense itself." State v. Lake, 408 N.J.Super. 313, 326 (App. Div. 2009)(citing Megargel, supra, 143 N.J. at 500-01). Personal "characteristics or behavior of the offender are applicable only as they relate to the offense itself and give fuller context to the offense circumstances." Lake, supra, 408 N.J.Super. at 328.
In its analysis, the remand court improperly focused on characteristics of the offender that do not uniquely relate to the offense to warrant a downgraded sentence. The unfortunate collision in this case principally arose from Chesler's toxic brew of excessive speeding and intoxication that led to his reckless operation of a motor vehicle that ended another's life. The fact that Chesler's actions resulted in the death of an individual should have acted as the lodestar that the "severity of the crime remains the single most important factor in considering whether the interest of justice demands a downgrade." Lake, supra, 408 N.J.Super. at 326 (citing Megargel, supra, 143 N.J. at 500). The remand court simply did not factor the severity of the crime into its analysis when examining surrounding circumstances that would result in a downgraded sentence.
Instead, the remand court exclusively emphasized Chesler's driving inexperience as the unique surrounding circumstance arising from the context of the offense. The court characterized this inexperience as so extensive that "were he a driver free of impairment because of the influence of alcohol, his inexperience necessarily still would have been a significant and proximate consideration." We are unable to discern any evidence in the record to support this assumption.
Braking at a posted stop sign and operating a vehicle within the speed limit in a residential neighborhood are fundamental concepts imparted to novice drivers at the very onset of their drivers' education. Reliance on basic driving failures as circumstances arising from the offense along with characterizing such deficiencies as idiosyncratic in this situation represent a fundamental departure from the Megargel standard and does not warrant a downgraded sentence.
Reversed and remanded for re-sentencing.