October 18, 2017 and February 15, 2018
appeal from Superior Court of New Jersey, Law Division,
Somerset County, Indictment No. 10-12-0770.
Matthew Murphy, Assistant Prosecutor, argued the cause for
appellant (Michael H. Robertson, Somerset County Prosecutor,
attorney; Matthew Murphy, on the brief).
Gilbert G. Miller argued the cause for respondent (McDonald
& Rogers, LLC, and Wronko Loewen Benucci, attorneys;
Michael J. Rogers, of counsel; Gilbert G. Miller, of counsel
and on the brief).
Judges Alvarez, Nugent, and Geiger.
22, 2016, we affirmed defendant Amy Locane's convictions
after a jury trial. She was found guilty of the
lesser-included offense of second-degree vehicular homicide,
N.J.S.A. 2C:11-5(a), third-degree assault by auto, N.J.S.A.
2C:12-1(c)(2), and related motor vehicle offenses.
of errors in the sentence, however, we remanded the matter.
Contrary to our decision, the trial judge on January 13,
2017, imposed the same terms of imprisonment, employing
virtually the same analysis of statutory aggravating and
mitigating factors. See N.J.S.A. 2C:44-1. We again
vacate and remand, this time directing that a different judge
circumstances of the offenses found in the trial record are
fully described in our earlier unpublished opinion. State
v. Locane, No. A-2728-12 (App. Div. July 22, 2016). We
provide new factual circumstances developed during the second
sentence hearing in the relevant sections of our discussion.
By way of introduction, it is necessary only to reiterate
that the State's forensic psychopharmacologist testified
at the trial that when defendant crashed into the
victims' car, her blood alcohol concentration (BAC) was
likely .23 percent. She was driving at approximately
fifty-three miles per hour in a thirty-five mile per hour
driver of the car she struck, Fred Seeman (Seeman),
severely injured. He had been turning into his driveway at
the moment of impact. Seeman's wife, Helene, died from
her injuries at the scene. Her death was witnessed by the
Seemans' youngest son, then a teenager, who ran out of
the house when he heard the sound of the collision.
Sentence and Remand
was first sentenced on February 14, 2013. The trial judge
then downgraded the lesser-included second-degree conviction
for vehicular homicide to a third-degree crime. He imposed a
term of three years' imprisonment on that offense, but
did not include the three-year parole bar mandated by
N.J.S.A. 2C:11-5(b)(1). The judge sentenced defendant to a
concurrent three-year term of imprisonment on the assault by
auto conviction. The State appealed the sentence; defendant
cross-appealed the conviction.
to the sentence date, defendant voluntarily reported to the
county jail and was therefore in custody when sentenced. She
was released from prison on June 12, 2015, after serving
eighty-five percent of her three-year sentence as called for
by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. She
is presently serving her parole supervision term as required
by the statute.
time passed between the conviction and the direct appellate
review that followed because, after being represented by
private counsel during the trial, defendant sought the
services of the Public Defender's Office, a request
initially opposed by the prosecutor. See State v.
A.L., 440 N.J.Super. 400 (App. Div. 2015).
prior decision on the direct appeal, we found the sentence
illegal because the judge failed to impose the mandatory
three-year parole bar. Locane, slip op. at 48-49;
see N.J.S.A. 2C:11-5(b)(1) . The judge also failed
to apply the two-step analysis required by N.J.S.A.
2C:44-1(f) (2) prior to a conviction downgrade.
Locane, slip op. at 4 9-5 3; see State v.
Megargel, 143 N.J. 484, 495 (1996). Furthermore, he
overlooked the single most important factor in the sentencing
calculus: the severity of the offense. Locane, slip
op. at 50-51; see Megargel, 143 N.J. at 500.
explained in our decision that in determining whether the
interests of justice demanded a downgrade of the offense,
defendant's overall character was not to be included
because the statute was offense-oriented. See id. at
499; State v. Lake, 408 N.J.Super. 313, 328-29 (App.
Div. 2009). The trial judge justified the downgrade primarily
because of the impact that defendant's imprisonment would
have on her children, and her successful efforts at
controlling her alcoholism. We reiterated black-letter law
that the focus of the downgrade decision must be the severity
of the crime, not defendant's personal circumstances.
See State v. Read, 397 N.J.Super. 598, 612 (App.
we directed the judge when resentencing defendant to revisit
the impact of State v. Yarbough, 100 N.J. 627, 630
(1985). In the 2013 sentencing decision, the judge had
ignored the severity of defendant's conduct. See
State v. Abdullah, 184 N.J. 497, 515 (2005); State
v. Rogers, 124 N.J. 113, 121 (1991).
trial judge during the difficult and lengthy trial committed
no reversible error. Out of an abundance of respect for that
significant and noteworthy accomplishment, we couched
reversal of the sentencing decision in neutral terms. But we
clearly explained that the sentence was erroneous, beginning
with the failure to impose the mandated parole bar, followed
by the failure to adhere to the statutory analysis on the
downgrade of the second-degree conviction to a third, and
ending with the failure to impose consecutive sentences for
the grave harm inflicted on two separate victims. See
State v. Carey, 168 N.J. 413, 428 (2001) ("Crimes
involving multiple deaths or victims who have sustained
serious bodily injuries represent especially suitable
circumstances for the imposition of consecutive
of Mandatory Parole Bar by Alleyne v. United States;
Downgrade of Third-Degree Offense
intervening years between the first and second sentence
hearings, the law changed. The State's appeal and
defendant's cross-appeal were pending when the United
States Supreme Court decided Alleyne v. United
States, 57 0 U.S. 9 9 (2013). Alleyne stands
for the proposition that a mandatory minimum sentence, such
as the three-year parole bar found in our vehicular homicide
statute, violates the Sixth Amendment right to a jury trial
when a fact upon which it is predicated, such as
intoxication, is not submitted to the jury for their
determination. Alleyne, 570 U.S. at 115-16. In other
words, unless a jury finds a defendant was intoxicated when
the homicide occurred, no sentence enhancement can be
State v. Grate, 220 N.J. 317 (2015), our own Supreme
Court applied Alleyne to a statute that requires
imposition of a mandatory minimum sentence when the
sentencing judge, not a jury, finds that a defendant is
involved in organized criminal activity, N.J.S.A. 2C:39-5(i).
Grate, 220 N.J. at 323-24. The Court held that a
mandatory minimum sentence, when based on a judicial finding
of fact, "cannot survive constitutional scrutiny."
indictment in this case, which charged first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), made no
mention of defendant's intoxication. Neither did the
verdict sheet submitted to the jury, which included the
option of the lesser-included second-degree vehicular
N.J.S.A. 2C:11-5(a) states that "[p]roof that the
defendant was driving while intoxicated in violation of R.S.
39:4-50 . . . shall give rise to an inference that the
defendant was driving recklessly." N.J.S.A.
2C:11-5(b)(1) then goes on to state that when a defendant
operates a motor vehicle
with a blood alcohol concentration at or above the prohibited
level as prescribed in R.S. 39:4-50, . . . the defendant
shall be sentenced to a term of imprisonment by the court.
The term of imprisonment shall include the imposition of a
minimum term. The minimum term shall be fixed at or between,
one-third and one-half of the sentence imposed by the court
or three years, whichever is greater, during which the
defendant shall be ineligible for parole.
N.J.S.A. 2C:11-5b(2) provides "[t]he court shall not
impose a mandatory sentence pursuant to paragraph (1) of this
subsection unless the grounds therefor have been established
at a hearing." The hearing can take place "at the
time of sentencing, " and requires that the prosecutor
establish by a preponderance of the evidence that
defendant's BAC was at or above the .08 level found in
N.J.S.A. 39:4-50. This procedure, as the trial judge found
during the remand sentence hearing, was unconstitutional
after the Alleyne decision. The doctrine clearly
applies to cases, such as this one, that were in the pipeline
after the date of decision. See Grate, 220 N.J. at
Alleyne issue was not raised on appeal. We should
have, but did not, sua sponte consider the effect of
Alleyne and Grate on our remand decision.
At the remand sentence proceeding, the trial judge correctly
concluded that he could not impose the three-year minimum
trial judge also downgraded the third-degree offense of
assault by auto related to Seeman's injuries to a
fourth-degree offense. N.J.S.A. 2C:12-1(c)(2) states that
"assault by auto . . . is a crime of the third degree if
the person drives the vehicle while [intoxicated] in
violation of R.S. 39:4-50 . . . and serious bodily injury
results." N.J.S.A. 2C:12-1(c)(1) makes a person guilty
of assault by auto when a "person drives a vehicle . . .
recklessly and causes either serious bodily injury or bodily
injury to another. Assault by auto ... is a crime of the
fourth degree if serious bodily injury results."
the jury made no findings as to defendant's intoxication,
grading the crime as a third-degree offense was no longer
constitutional. The conviction could survive only if molded
to the fourth-degree crime defined in the statute.
trial judge understood the remand as requiring him only to
more fully explain his reasons for the sentence. He supported
this view by citing to the portion of our decision in which
we said, as appellate courts often do, that we took no
position with regard to any new sentence he might impose. In
reiterating the same perspective he expressed during the
first sentencing proceeding, the judge disregarded our
extensive discussion regarding the legal standard for a
downgrade. As he did at the initial sentencing hearing, the
judge on remand focused on the personal circumstances
particular to this defendant and not the severity of the
crimes she had committed.
explaining that Alleyne prevented the imposition of
a parole bar on the second-degree offense and mandated the
reduction of the third-degree assault to a fourth-degree
offense, the judge added "[t]he purpose of sentencing
law starts with the proposition that our [s]tatutes address
correction and rehabilitation of offenders, differentiation
among offenders, with a view toward individualization, and
justness in their treatment."
judge again gave slight weight to aggravating factor nine.
N.J.S.A. 2C:44-1(a)(9) . He found in mitigation factors two,
four, six, eight, nine, and eleven. N.J.S.A. 2C:44-1(b)(2),
(4), (6), (8), (9), (11). The judge again downgraded the
vehicular homicide from a second-degree offense to a
third-degree crime, imposing the lowest possible term of
imprisonment within that range. He sentenced defendant to
precisely the same term on the vehicular homicide -
a three-year term of imprisonment - with an eighteen-month
sentence on the now fourth-degree assault by auto.
the trial judge was presented with evidence that defendant
had been sober since the conviction, he opined that
aggravating factor nine had slight weight, and he found that
there was no need to deter her from future acts of drunken
driving. The judge gave no weight to the need for general
2017, the judge focused, as he did in 2013, on mitigating
factor eleven, the potential harm incarceration would inflict
on defendant's children. He was presented with a
psychological report stating that defendant's
reincarceration would traumatize her children and potentially
have lifelong consequences. At the time of the second
sentence, defendant was divorced, the children were in the
sole custody of their father, and they saw their mother every
other weekend and one evening a week. The youngest child, who
suffers from Crohn's Disease, had physically stabilized,
and was no longer dependent upon her mother for basic
nutrition, as was alleged during the first sentence hearing.
the downgrade, the judge stated that there was "no
compelling, or persuasive reason to return this [d]efendant
to prison." He added, "[a]lthough the degree of
crime is the focus of the sentence, facts personal to the
[d]efendant may be considered in the sentencing
process." Since he viewed defendant's offense as
unlikely to recur, he considered it unnecessary to impose
even a five-year sentence, the lowest in the second-degree
range for vehicular homicide. He calculated that a five-year
sentence would require defendant to return to prison for a
minimum of 20.4 months under NERA, while serving "no
legitimate sentencing purpose, other than retribution."
defendant killed one person and significantly injured
another, the judge opined, did not "rule the day."
He added that in viewing "the fairness of the overall
sentence, " "[d]efendant's conduct may
constitute multiple offenses, [but] the sentencing phase
concerns the disposition of a single, not a multiple human
judge described Yarbough as a guideline which left a
"fair degree of discretion with the sentencing
court." Although two victims might seem to require a
consecutive sentence, "[a] qualitative analysis
[rendered] a different result." Focusing on his
favorable view of defendant's rehabilitative efforts
after the accident, he considered a concurrent sentence to be
judgment of conviction states that the court found
aggravating factor nine, and mitigating factors six, seven,
eight, nine, and eleven. N.J.S.A. 2C:44-1(b)(7). The judgment
also states that:
under State v. Yarbough, courts have a duty to look
at an individual offender in balancing the aggravating and
mitigating factors to determine the proper range of sentence.
State v. Yarbough, 100 N.J. 627, 636 (1985),
cert, den Tied], 475 U.S. 1014 (1986). Aggravating
and mitigating factors are utilized to insure that sentencing
is individualized without being arbitrary. The factors insure
that the sentence imposed is tailored to the individual
offender and to the particular crime he or she committed.
State v. Sainz, 107 N.J. 283, 289 (1987).
judgment further noted that aggravating factor nine was
accorded only "minimal weight."
subsequent judgment filed on February 1, 2017, titled
"Form Correction, " the judge added that
"because [defendant] was intoxicated . . . mitigating
factor [two] can be applied, but it is assigned minimal
weight in the balance, since it is fairly assumed that while
an intoxicated driver does not contemplate harm will result,
certainly she should have." N.J.S.A. 2C:44-1(b)(2).
State raises the following points ...