State v. Carlos Bolvito (071493)

SYLLABUS

(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

interest of brevity, portions of any opinion may not have been summarized).

State v. Carlos Bolvito (A-44-12) (071493)

Argued November 6, 2013 -- Decided March 31, 2014

PATTERSON, J., writing for a unanimous Court.

In this appeal, the Court addresses whether a sentencing court may consider a defendant’s ability to pay

when setting a monetary penalty pursuant to the Sex Crime Victim Treatment Fund (SCVTF), N.J.S.A. 52:4B-43.2.

Defendant Carlos Bolvito pled guilty to three offenses arising from sexual assaults of his stepdaughter:

First-degree aggravated sexual assault, second-degree sexual assault, and second-degree endangering the welfare of

a child. These predicate offenses triggered the imposition of mandatory penalties under the SCVTF, but the plea

agreement presented to the trial court did not specifically address the SCVTF penalties to be assessed against

defendant. Defendant signed a plea form, however, acknowledging his understanding that “as a result of [his] guilty

plea [he would] be required to pay a mandatory [SCVTF] penalty.” The form disclosed the applicable maximum

penalty amounts for each offense to which defendant pled guilty, and listed the “Total S.C.V.T.F. Penalty” as

$4,000.00. During the plea colloquy, the court also asked whether defendant understood that he would have to

contribute “a total of $4,000” to the SCVTF, and defendant responded affirmatively. Satisfied that defendant had

set forth an adequate factual basis for a plea of guilty as to all three charges, and that defendant understood the

consequences of his plea, the trial court accepted defendant’s guilty plea.

After analyzing the applicable aggravating and mitigating factors, the trial court sentenced defendant to a

term of imprisonment, imposed parole supervision for life, ordered defendant to pay $6,230.40 in restitution, and

assessed an SCVTF penalty of $4,000.00 in addition to other fines, charges, and penalties. The court did not

provide a statement of reasons or identify the factors that it considered in setting the amount of the SCVTF penalty.

Defendant appealed his sentence. In addition to challenging his custodial sentence and the order of

restitution, defendant argued that he should not be required to pay his SCVTF penalty because the court did not hold

a hearing to determine his ability to pay the penalty, and the record did not indicate how the penalty was calculated.

The Appellate Division rejected defendant’s contention that the court should have considered his ability to pay when

it calculated the SCVTF penalty. The panel remanded to the trial court for reconsideration of its restitution order,

but otherwise affirmed defendant’s sentence. The Court granted Bolvito’s petition for certification, limited to the

issue of whether a sentencing court may consider a defendant’s ability to pay when imposing an SCVTF penalty.

213 N.J. 394-95 (2013).

HELD: A sentencing court may impose the mandatory Sex Crime Victim Treatment Fund penalty in any amount

between a nominal figure and the upper limit prescribed by N.J.S.A. 2C:14-10(a) for the degree of the offense at issue.

In setting the penalty, the sentencing court should (1) consider the nature of the offense and the defendant’s ability to

pay the penalty during any custodial sentence imposed and after his or her release, and (2) provide a statement of

reasons as to the amount of any penalty.

1. Appellate courts apply a deferential standard of review to a sentencing court’s determination, but not to its

interpretation of a law. In reviewing the amount of a SCVTF penalty imposed by a sentencing court pursuant to

N.J.S.A. 2C:14-10, the Court construes that provision in accordance with established principles of statutory

interpretation. The Court’s task is to ascertain the Legislature’s intent, reflecting its chosen language, and to give

the words of the statute “‘their generally accepted meaning.’” State v. Marquez, 202 N.J. 485, 499 (2010) (quoting

N.J.S.A. 1:1-1). (pp. 9-10)

2. In 2005, the Legislature established the SCVTF to defray the cost of counseling and treatment services for the

victims of certain sex offenses and their families. N.J.S.A. 52:4B-43.2; S. 781 (Sponsor’s Statement), 211th Leg.

1

(Feb. 5, 2004). To fund the services, the Legislature enacted N.J.S.A. 2C:14-10, which imposes upon defendants

convicted of enumerated sex offenses a monetary penalty from a nominal amount to a specific maximum amount

based upon the degree of the offense. Specifically, N.J.S.A. 2C:14-10 states that a person convicted of a qualifying

sex offense “shall” be assessed the statutory penalty. The Legislature’s choice of language makes clear that it

intended that an SCVTF penalty be imposed on any defendant convicted of a predicate offense. That interpretation

is underscored by the sponsor’s statement attached to the bill. S. 781 (Sponsor’s Statement), 211th Leg. (Feb. 5,

2004) (sex offender “would be assessed a penalty for each such offense”). Thus, if a defendant commits a predicate

offense, the sentencing court lacks the discretion to dispense with the SCVTF penalty. (pp. 11-14).

3. Although SCVTF penalties are mandatory when the defendant commits a predicate offense, the sentencing court

has substantial discretion with respect to the amount of the penalty. For each degree of offense, the Legislature set

an SCVTF penalty “not to exceed” a particular amount, but there is no evidence that the Legislature intended the

maximum SCVTF penalty for a lower degree of offense to constitute the minimum penalty for a higher degree

offense. See N.J.S.A. 2C:14-10(a); S. 781 (Sponsor’s Statement), 211th Leg. (Feb. 5, 2004). The Legislature is

fully conversant in the language necessary to set minimum and maximum parameters for a monetary penalty and has

used such language in other statutes. By contrast, the “not to exceed” language in N.J.S.A. 2C:14-10 imposes a

ceiling, not a floor, on the amount to be assessed as an SCVTF penalty for each degree of offense, and thus a court

may impose a penalty in any amount, from a nominal amount up to the statutory maximum. (pp. 14-15)

4. When a sentencing court exercises its discretion to set an SCVTF penalty within the applicable statutory range, it

should consider a defendant’s ability to pay. The Legislature specifically instructed sentencing courts to consider a

defendant’s ability to pay when imposing several other monetary assessments. See N.J.S.A. 2C:44-2(c)(2)

(restitution); N.J.S.A. 2C:44-2(c)(1) (fines); N.J.S.A. 2C:43-3.1(a)(1) (Violent Crimes Compensation Board

penalties). By contrast, other penalties prescribed by statute impose a “fixed” amount that “must be imposed

regardless of [a] defendant’s ability to pay.” See N.J.S.A. 2C:35-15 (Drug Enforcement Demand Reduction

penalty). Here, the Legislature did not impose “fixed” amounts for mandated SCVTP penalties, nor did it prescribe

criteria for a court to apply when setting a penalty within the statutory range. However, N.J.S.A. 2C:1-2(c)

generally instructs courts that “‘discretionary powers conferred by the code shall be exercised in accordance with the

criteria stated in the code and, insofar as such criteria are not decisive, to further the general purposes’ of the Code.”

State v. Yarbough, 100 N.J. 627, 636 (1985) (quoting N.J.S.A. 2C:1-2(c)), cert. denied, 475 U.S. 1014 (1986) (pp.

15-17)

5. Applying the governing principles of Yarbough, two factors should be considered in a sentencing court’s

application of N.J.S.A. 2C:14-10. First, the court should consider the nature of the offense when determining a

defendant’s SCVTF penalty within the statutory range. This promotes the principle of punishment in proportion to

the offense, encourages uniformity in sentencing, and, consistent with the legislative intent, furthers the goal of

requiring sex offenders to alleviate the financial burden imposed on victims of sex crimes, their families and public

resources. Second, a sentencing court setting an SCVTF penalty should consider the defendant’s ability to pay the

amount assessed. In so doing, the court should look beyond the defendant’s current assets and anticipated income

during the period of incarceration, and should assess the defendant’s ability to pay over the long term. If unpaid, the

penalty does not evaporate at the conclusion of the defendant’s custodial sentence or his or her period of parole

supervision. (pp. 17-20)

6. Finally, the sentencing court should provide a statement of reasons when it sets a defendant’s SCVTF penalty

within the statutory parameters, so as to apprise the parties, the victim, and the public and facilitate appellate review.

(pp. 20-21)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for proceedings

consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and FERNANDEZ-VINA; and

JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE RODRÍGUEZ

(temporarily assigned) did not participate.

2

SUPREME COURT OF NEW JERSEY

A-44 September Term 2012

071493

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS BOLVITO,

Defendant-Appellant.

Argued November 6, 2013 – Decided May 31, 2014

On certification to the Superior Court,

Appellate Division.

Peter T. Blum, Assistant Deputy Public

Defender, argued the cause for

appellant (Joseph E. Krakora, Public

Defender, attorney).

Emily R. Anderson, Deputy Attorney

General, argued the cause for

respondent (John J. Hoffman, Acting

Attorney General of New Jersey,

attorney).

JUSTICE PATTERSON delivered the opinion of the Court.

In 2005, the Legislature established the Sex Crime

Victim Treatment Fund (SCVTF) to defray the cost of

counseling and treatment services for the victims of

certain sex offenses and their families. N.J.S.A. 52:4B-

43.2. To fund the services, the Legislature enacted

N.J.S.A. 2C:14-10, which imposes upon defendants convicted

of enumerated sex offenses a monetary penalty from a

1

nominal amount to a specific maximum amount based upon the

degree of the offense. The statute does not set forth the

factors that a sentencing court should consider when

imposing an SCVTF penalty. N.J.S.A. 2C:14-10.

This appeal requires the Court to determine whether a

sentencing court may consider a defendant’s ability to pay

when it determines the amount of an SCVTF penalty that a

defendant owes. Defendant Carlos Bolvito pled guilty to

three offenses arising from sexual assaults of his

stepdaughter. In addition to a term of incarceration and

other fines and penalties, the trial court imposed an SCVTF

penalty of $4000, but did not provide a statement of

reasons or identify the factors that it considered in

setting the amount of the penalty. An Appellate Division

panel rejected defendant’s contention that the sentencing

court should have considered his ability to pay when it

calculated the amount of his SCVTF penalty, and affirmed

his sentence.

We reverse and remand for reconsideration of the

amount of the SCVTF penalty imposed on defendant. We hold

that the SCVTF penalty is mandatory in cases in which a

defendant is convicted of a sexual offense identified in

the statute. We further hold that a sentencing court may

impose an SCVTF penalty against a defendant in any amount

2

between a nominal figure and the upper limit prescribed by

N.J.S.A. 2C:14-10(a) for the degree of the offense at

issue. In setting an SCVTF penalty, the sentencing court

should consider the nature of the offense, as well as the

defendant’s ability to pay the penalty during any custodial

sentence imposed and after his or her release. We further

hold that the sentencing court should provide a statement

of reasons as to the amount of any penalty imposed pursuant

to N.J.S.A. 2C:14-10(a).

Accordingly, we reverse and remand to the sentencing

court for reconsideration of the amount of defendant’s

SCVTF penalty.

I.

On two occasions in November 2010, defendant sexually

assaulted his seven-year-old stepdaughter. The assaults

were discovered following a physician’s examination of the

child. Defendant’s wife contacted the police, and in an

interview with police officers, the child recounted the

assaults. After being given warnings pursuant to Miranda

v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966), defendant was interrogated. He admitted to sexual

contact with the child.

Defendant was charged with first-degree aggravated

sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree

3

sexual assault, N.J.S.A. 2C:14-2(b); and second-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

Following his indictment, defendant entered into a plea

agreement with the State in which he agreed to plead guilty

to all three charges, and the State agreed to recommend a

twelve-year term of incarceration subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2. In the plea agreement

presented to the trial court, the State and defendant did

not specifically address the SCVTF penalty to be assessed

against defendant.

On January 28, 2011, defendant pled guilty to all

three of the charges in the indictment, and signed a plea

form that included the following question:

8. Sex Crime Victim Treatment Fund

Penalty (S.C.V.T.F.)

Do you understand that if the crime

occurred on or after April 26, 2005, as

a result of your guilty plea you will

be required to pay a mandatory Sex

Crime Victim Treatment Fund

(S.C.V.T.F.) penalty as listed below

for each offense for which you pled

guilty?

b. The mandatory penalties are as

follows:

(1) Up to $2,000 in the case of a 1st

degree crime

(2) Up to $1,000 in the case of a 2nd

degree crime

(3) Up to $750 in the case of a 3rd

degree crime

(4) Up to $500 in the case of a 4th

degree crime

4

TOTAL S.C.V.T.F. Penalty: $

On defendant’s form, “yes” was circled next to the

question seeking to verify defendant’s understanding that

he would be required to pay the SCVTF penalty. In

addition, subsection (1), relevant to first-degree

offenses, and subsection (2), relevant to second-degree

offenses, were circled by hand, and there was a handwritten

notation of “$4000.00” on the space for the SCVTF penalty

amount. Defendant signed and dated the form. The trial

court then conducted a plea colloquy with defendant that

included the following exchange:

[The Court:] Also, do you understand

that, if the -- since the crime

occurred after April 26th, 2005, there’s

a Sex Crime Victim Treatment Fund to

which you will have to make

contributions of $2,000 for the first-

degree offense and $1,000 for each of

the second-degree offenses for a total

of $4,000? Do you understand that you

will have to pay that?

[Defendant:] Yes.

The trial court stated that it was satisfied that

defendant had set forth an adequate factual basis for a

plea of guilty as to all three charges, and that defendant

understood the consequences of his plea. Accordingly, the

trial court accepted defendant’s guilty plea.

5

Defendant was sentenced on June 24, 2011. The

sentencing court found four aggravating factors enumerated

in N.J.S.A. 2C:44-1(a): (1) the gravity and seriousness of

harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2); (2)

the risk that defendant will commit another offense,

N.J.S.A. 2C:44-1(a)(3); (3) the extent of defendant’s prior

criminal record, N.J.S.A. 2C:44-1(a)(6); and (4) the need

for deterrence, N.J.S.A. 2C:44-1(a)(9). It found that none

of the mitigating factors set forth in N.J.S.A. 2C:44-1(b)

applied to defendant.

The court sentenced defendant to a twelve-year term of

imprisonment on the first-degree aggravated sexual assault

charge, a concurrent seven-year term of imprisonment on the

second-degree sexual assault charge, and a concurrent

seven-year term of imprisonment on the second-degree charge

of endangering the welfare of a child. Parole supervision

for life was imposed as well. The sentencing court noted

defendant’s immigration status, and stated that he would be

required to serve his full custodial sentence before being

deported to Guatemala, the country of his citizenship. The

sentencing court advised defendant that he would be barred

from contacting the victim, required to provide a DNA

sample and pay the cost of the DNA analysis, and subject to

registration requirements, community notification, address

6

verification and internet registry pursuant to Megan’s Law,

N.J.S.A. 2C:7-1 to -19. The sentencing court also ordered

defendant to pay restitution, several statutory assessments

and a surcharge.1 One of those penalties was described by

the sentencing court, without further explanation, as a

“4,000-dollar Sex Crime Victim Treatment Fund penalty,”

pursuant to N.J.S.A. 2C:14-10.

Defendant appealed his sentence. In addition to

challenging his custodial sentence and the court’s

restitution order, defendant argued that he should not be

required to pay his SCVTF penalty because the sentencing

court did not hold a hearing to determine his ability to

pay the penalty, and the record did not indicate how the

penalty was calculated. The Appellate Division remanded to

the trial court for reconsideration of its restitution

order, but otherwise affirmed defendant’s sentence.

1

The sentencing court ordered defendant to pay $6,230.40 in

restitution for the victim’s “loss of support and

psychological counseling,” N.J.S.A. 2C:43-3(a). It also

ordered him to pay $150 to the Victims of Crime

Compensation Office, N.J.S.A. 2C:43-3.1(a)(2)(a), $225 for

the Safe Neighborhoods Services Fund, N.J.S.A. 2C:43-

3.2(a)(1), $30 for the Law Enforcement Officers Training

and Equipment Fund, N.J.S.A. 2C:43-3.3(a), $2400 for the

Statewide Sexual Assault Nurse Examiner Program Fund,

N.J.S.A. 2C:43-3.6, and a $100 surcharge imposed upon

certain sexual offenders, N.J.S.A. 2C:43-3.7.

7

This Court granted certification, limited to the issue

of whether a sentencing court must consider a defendant’s

ability to pay when imposing an SCVTF penalty. 213 N.J.

394-95 (2013).

II.

Representing that he will be unable to pay his SCVTF

penalty, defendant argues that the trial court should have

held a hearing to assess his financial status. He contends

that the amount of money listed for each degree of offense

in N.J.S.A. 2C:14-10 represents a maximum that the

sentencing court can assess, not a mandatory penalty.

Defendant urges the Court to require sentencing courts to

state the reasons for imposing SCVTF penalties, and argues

that a defendant’s ability to pay should be the primary

consideration for the court. He proposes that a sentencing

court should presume that a defendant’s earnings will be

minimal following his release from a custodial sentence,

and offers several factors to guide sentencing courts in

determining the defendant’s ability to pay and the amount

of SCVTF penalties.

The State concurs that a defendant’s ability to pay

may be considered by the sentencing court, but argues that

it should be a secondary concern. It contends that the

sentencing court should focus upon the nature and severity

8

of the crime, given the legislative purpose of N.J.S.A.

2C:14-10 to assist victims of sexual offenses. The State

construes N.J.S.A. 2C:14-10 as setting a range for each

degree of offense, so that the upper limit for a second-

degree offense, $1000, constitutes the minimum SCVTF

penalty for a first-degree offense. The State argues that

the sentencing court properly assessed the $4000 SCVTF

penalty in this case based on defendant’s guilty plea to

one first-degree offense and two second-degree offenses,

and that the Court therefore should affirm the Appellate

Division panel’s judgment.

III.

We apply a deferential standard of review to the

sentencing court’s determination, but not to the

interpretation of a law. Appellate review of a criminal

sentence is limited; a reviewing court decides whether

there is a “clear showing of abuse of discretion.” State

v. Whitaker, 79 N.J. 503, 512 (1979) (internal quotation

marks omitted); see also State v. Blackmon, 202 N.J. 283,

297 (2010) (“Appellate review of sentencing decisions is

relatively narrow and is governed by an abuse of discretion

standard.”). Appellate courts must affirm the sentence of

a trial court unless: (1) the sentencing guidelines were

violated; (2) the findings of aggravating and mitigating

9

factors were not “based upon competent credible evidence in

the record;” or (3) “the application of the guidelines to

the facts” of the case “shock[s] the judicial conscience.”

State v. Roth, 95 N.J. 334, 364-65 (1984).

We review only one aspect of defendant’s sentence: the

amount of the SCVTF penalty imposed by the sentencing court

pursuant to N.J.S.A. 2C:14-10. We construe that provision

in accordance with established principles of statutory

interpretation. The Legislature directs that in the

construction of its statutes, “words and phrases shall be

read and construed with their context, and shall, unless

inconsistent with the manifest intent of the legislature or

unless another or different meaning is expressly indicated,

be given their generally accepted meaning, according to the

approved usage of the language.” N.J.S.A. 1:1-1. Our task

is to ascertain the Legislature’s intent, reflecting its

chosen language, and to give the words of the statute

“‘their generally accepted meaning.’” State v. Marquez,

202 N.J. 485, 499 (2010) (quoting N.J.S.A. 1:1-1). We

“‘effectuat[e] the legislative plan as it may be gathered

from the enactment [when] read in full light of its

history, purpose and context.’” Koch v. Dir., Div. of

Taxation, 157 N.J. 1, 7 (1999) (quoting State v. Haliski,

140 N.J. 1, 9 (1995)).

10

The sponsor’s statement appended to the 2004 bill

indicated that the Legislature was imposing the SCVTF

penalty “to provide funding for the counseling and

treatment of victims and their families.” S. 781

(Sponsor’s Statement), 211th Leg. (Feb. 5, 2004). The

statute assesses a penalty against defendants convicted of

certain sex offenses.2 It provides, in relevant part:

a. In addition to any fine, fee,

assessment or penalty authorized under

the provisions of Title 2C of the New

Jersey Statutes, a person convicted of

a sex offense, as defined in [N.J.S.A.

2C:7-2], shall be assessed a penalty

for each such offense not to exceed:

(1) $2,000, when the conviction is a

crime of the first degree;

(2) $1,000, when the conviction is a

crime of the second degree;

(3) $750, when the conviction is a

crime of the third degree; and

(4) $500, when the conviction is a

crime of the fourth degree.

[N.J.S.A. 2C:14-10.]

To ensure that funds collected by virtue of this

statutory penalty are used to assist sex crime victims and

2

N.J.S.A. 2C:14-10 applies to offenders convicted of one or

more of the offenses enumerated in N.J.S.A. 2C:7-2. All

three of the offenses to which defendant pled guilty --

aggravated sexual assault, N.J.S.A. 2C:14-2(a); sexual

assault, N.J.S.A. 2C:14-2(b); and second-degree endangering

the welfare of a child, N.J.S.A. 2C:24-4(a) -- are

enumerated in N.J.S.A. 2C:7-2 and therefore constitute

predicate sexual offenses for purposes of imposing the

SCVTF penalty. N.J.S.A. 2C:7-2; N.J.S.A. 2C:14-10.

11

their families, the Legislature created the SCVTF as a

“separate, nonlapsing, revolving fund” administered by the

Victims of Crime Compensation Board. N.J.S.A. 52:4B-43.2.

The fund is dedicated to “the provision of counseling and

treatment services to victims” of sex offenses enumerated

in N.J.S.A. 2C:7-2 pursuant to rules and regulations

promulgated by the Victims of Crime Compensation Board,

which is required to coordinate the treatment program with

the efforts of several other State agencies dedicated to

serving crime victims. N.J.S.A. 52:4B-43.2. In the

sponsor’s statement appended to the bill, the Legislature

indicated that the SCVTF penalty “would be in addition to

and not in lieu of any fine authorized by law.” S. 1619

(Sponsor’s Statement), 209th Leg. (Sept. 21, 2000).3

N.J.S.A. 2C:14-10 states that a person convicted of a

qualifying sex offense “shall” be assessed the statutory

penalty. Based on this language, it is clear that the

3

Pursuant to N.J.S.A. 2C:46-4.1, in determining the method

by which the State will allocate money collected from a

defendant in satisfaction of assessments imposed pursuant

to N.J.S.A. 2C:43-3.1, or restitution or fines imposed

pursuant to any provision of Title 2C or N.J.S.A. 2A:4A-43,

the Legislature assigned the SCVTF a low priority.

N.J.S.A. 2C:46-4.1(k) ranks the SCVTF eleventh among twelve

categories of assessments, fines and restitution. N.J.S.A.

2C:46-4.1(k). Accordingly, money paid by a defendant is

devoted to satisfying his or her SCVTF penalty only after

he or she has paid any restitution ordered and any

assessments or fines imposed pursuant to ten other

statutory provisions.

12

Legislature intended that an SCVTF penalty be imposed on

any defendant convicted of one or more of the sexual

offenses listed in N.J.S.A. 2C:7-2. “[T]he Legislature’s

choice of the word ‘shall,’ [] is ordinarily intended to be

mandatory, not permissive.” Jersey Cent. Power & Light Co.

v. Melcar Util. Co., 212 N.J. 576, 587-88 (2013); see also

State v. Thomas, 188 N.J. 137, 149-50 (2006) (stating that

“[t]he language of [N.J.S.A.] 2C:43-6(f) clearly indicates

that the Legislature meant enhancement to be mandatory: a

person ‘shall upon application of the prosecuting

attorney be sentenced by the court to an extended term’”

(quoting N.J.S.A. 2C:43-6(f))); Aponte-Correa v. Allstate

Ins. Co., 162 N.J. 318, 325 (2000) (“Under the ‘plain

meaning’ rule of statutory construction, the word ‘may’

ordinarily is permissive and the word ‘shall’ generally is

mandatory.”). That interpretation is underscored by the

statute’s legislative history; the sponsor’s statement

attached to the bill provided that a sex offender “would be

assessed a penalty for each such offense.” S. 781

(Sponsor’s Statement), 211th Leg. (Feb. 5, 2004). Thus,

N.J.S.A. 2C:14-10 mandates that a sentencing court impose

an SCVTF penalty on a defendant convicted of an offense

listed in N.J.S.A. 2C:7-2. If N.J.S.A. 2C:14-10 applies by

virtue of a predicate offense, the sentencing court lacks

13

the discretion to dispense with the SCVTF penalty.

N.J.S.A. 2C:14-10.

The sentencing court, however, has substantial

discretion with respect to the amount of the SCVTF penalty.

For each degree of offense, the Legislature set an SCVTF

penalty “not to exceed” a particular amount -- $2000 for a

first-degree offense, $1000 for a second-degree offense,

$750 for a third-degree offense and $500 for a fourth-

degree offense. N.J.S.A. 2C:14-10(a). The sponsor’s

statement attached to the bill confirmed that each degree

of offense would result in a penalty “not to exceed” the

amount prescribed in the subsection of the statute that

addresses that degree of offense. S. 781 (Sponsor’s

Statement), 211th Leg. (Feb. 5, 2004).

Notwithstanding the State’s contention, there is no

evidence that the Legislature intended the maximum SCVTF

penalty for a lower degree of offense to constitute the

minimum penalty for a higher degree offense. The

Legislature is fully conversant in the language necessary

to set minimum and maximum parameters for a monetary

penalty; it has used such language in other statutes. See,

e.g., N.J.S.A. 2C:43-3.1 (assessing defendants convicted of

certain offenses in amount “at least $100.00, but not to

exceed $10,000.00 for each such crime”); N.J.S.A. 39:4-50

14

(setting minimum and maximum fines for first and second

offenders in driving while intoxicated statute). Here, the

“not to exceed” language in N.J.S.A. 2C:14-10 imposes a

ceiling, not a floor, on the amount to be assessed as an

SCVTF penalty for each degree of offense. See Maticka v.

City of Atlantic City, 216 N.J. Super. 434, 439 (App. Div.

1987) (holding that regulation providing for emergency

assistance for families with dependent children imposed

maximum time period for that assistance with language “not

to exceed two calendar months”). Accordingly, a sentencing

court may impose a penalty in any amount, from a nominal

amount up to the statutory maximum based on the defendant’s

offense.

The issue at the center of this appeal is whether a

defendant’s ability to pay should be considered by the

sentencing court when it exercises its discretion to set an

SCVTF penalty within the applicable statutory range. The

Legislature specifically instructed sentencing courts to

consider a defendant’s ability to pay when determining

whether to impose several other monetary assessments. In

setting the amount of restitution ordered under N.J.S.A.

2C:44-2(c)(2), the sentencing court considers “all

financial resources of the defendant, including the

defendant’s likely future earnings;” and calibrates its

15

order “so as to provide the victim with the fullest

compensation for loss that is consistent with the

defendant’s ability to pay.” N.J.S.A. 2C:44-2(c)(2).

Similarly, the Legislature instructed a sentencing court

determining the “amount and method of payment of a fine” to

“take into account the financial resources of the defendant

and the nature of the burden that its payment will impose.”

N.J.S.A. 2C:44-2(c)(1).4 Similarly, the Legislature

specifically directed sentencing courts to consider a

defendant’s ability to pay as one of the factors relevant

to a Violent Crimes Compensation Board (VCCB) penalty.

N.J.S.A. 2C:43-3.1(a)(1); see also State v. Gallagher, 286

N.J. Super. 1, 22-23 (App. Div. 1995), certif. denied, 146

N.J. 569 (1996). In contrast, the Drug Enforcement Demand

Reduction penalty prescribed by N.J.S.A. 2C:35-15 is “fixed

at” an exact amount for each degree of offense by statute,

and accordingly “must be imposed regardless of [a]

4

The criteria prescribed for determination of a “fine”

under N.J.S.A. 2C:44-2(c)(1) do not apply to the assessment

of a penalty under N.J.S.A. 2C:14-10. The Legislature

defined the SCVTF penalty to be distinct from a “fine,”

notwithstanding the close connection between the two terms,

and their interchangeable use in some settings. The SCVTF

statute provides that the “penalty” imposed shall be “[i]n

addition to any fine, fee, assessment or penalty” otherwise

authorized by the Criminal Code. N.J.S.A. 2C:14-10.

Further, the legislative history of N.J.S.A. 2C:44-2

distinguished between the subject of that statute -- fines

-- and criminal penalties. See Senate Judiciary Committee

Statement to S. 738, 198th Leg. (May 15, 1978).

16

defendant’s ability to pay.” State v. Malia, 287 N.J.

Super. 198, 208 (App. Div. 1996).

The Legislature imposed no such constraints on

sentencing courts with respect to the SCVTF penalty

mandated by N.J.S.A. 2C:14-10. Nor did it prescribe

criteria for a court to apply when setting a particular

defendant’s SCVTF penalty within the statutory range.

N.J.S.A. 2C:14-10. However, the Legislature provided

general guidance in N.J.S.A. 2C:1-2(c). That statute

instructs courts that “‘discretionary powers conferred by

the code shall be exercised in accordance with the criteria

stated in the code and, insofar as such criteria are not

decisive, to further the general purposes’ of the Code.”

State v. Yarbough, 100 N.J. 627, 636 (1985) (quoting

N.J.S.A. 2C:1-2(c)), cert. denied, 475 U.S. 1014, 106 S.

Ct. 1193, 89 L. Ed. 2d 308 (1986). In Yarbough, an opinion

setting forth factors to guide sentencing courts

determining whether sentences for multiple offenses should

run consecutively or concurrently, this Court noted:

There being no specific criteria stated

in the Code, we must fashion standards

for discretion that will best further

the purposes of the Code. Those

purposes center upon the concept that

punishment of crime be based primarily

on principles of deserved punishment in

proportion to the offense and not

rehabilitative potential, and that in

17

dispensing that punishment, our

judicial system should attain a

predictable degree of uniformity.

[Id. at 636-37 (footnote omitted).]

Applying those governing principles, we identify two

factors that should be considered in a sentencing court’s

application of N.J.S.A. 2C:14-10. The court should begin

by considering the nature of the offense when determining a

defendant’s SCVTF penalty within the statutory range.

Placing emphasis on the defendant’s offense promotes the

principle of punishment in proportion to the offense and

promotes uniformity in sentencing. Consistent with the

legislative intent, setting the SCVTF penalty in light of

the defendant’s offense also furthers the goal of requiring

sex offenders to alleviate the financial burden imposed on

victims of sex crimes, their families and public resources.

See N.J.S.A. 2C:14-10; N.J.S.A. 52:4B-43.2.

Second, consistent with the Legislature’s express

direction in N.J.S.A. 2C:44-2 with respect to two other

discretionary decisions -- the calculation of restitution

and the imposition of fines -- a sentencing court setting

an SCVTF penalty should consider the defendant’s ability to

pay the amount assessed. An uncollectible SCVTF penalty

18

provides no treatment for crime victims and their families.5

If a substantial penalty is assessed against a defendant

who has no realistic prospect of satisfying it, that

penalty is destined to become an unsatisfied judgment that

benefits no one. In contrast, a penalty below the

statutory maximum that is paid over time from a defendant’s

modest income may impose a more meaningful punishment than

a higher penalty assessed against a defendant of

substantial means.

When it assesses a defendant’s ability to pay, the

sentencing court should look beyond the defendant’s current

assets and anticipated income during the period of

incarceration. The Legislature did not impose time

constraints on an SCVTF penalty. N.J.S.A. 2C:14-10. If

unpaid, the penalty does not evaporate at the conclusion of

the defendant’s custodial sentence or his or her period of

parole supervision. To the extent that a defendant’s

educational background and employment history may affect

5

When it passed N.J.S.A. 2C:14-10, the Legislature

recognized that collecting substantial monetary penalties

from defendants convicted of sex offenses, many of whom

serve long terms of incarceration, would pose a challenge.

The Assembly Appropriations Committee’s fiscal impact

statement that accompanied the bill noted that “[a]t this

point it is not known . . . how much of the estimated

amount from penalties would be collectible.” Assembly

Appropriations Committee Statement to S. 781, 211th Leg.

(Feb. 7, 2005).

19

his or her potential to achieve post-incarceration

employment and a steady income, such factors may be

relevant to the inquiry. For purposes of the sentencing

court’s determination, a defendant’s ability to pay should

not be measured only by current circumstances, but assessed

over the long term.6

Finally, the sentencing court should provide a

statement of reasons when it sets a defendant’s SCVTF

penalty within the statutory parameters. See State v.

Megargel, 143 N.J. 484, 502 (1996) (noting that “as in all

sentencing decisions, the trial court must clearly identify

the relevant sentencing factors and describe how it

exercised its discretion balancing these factors”); State

v. Marshall, 130 N.J. 109, 237 (1992) (noting that

sentencing courts are required to provide “a statement of

reasons to protect effective appellate review of the

sentences” (citing State v. Leggeadrini, 75 N.J. 150, 157

(1977))); Yarbough, supra, 100 N.J. at 643 (stating that

“the reasons for imposing either a consecutive or

6

We do not adopt any presumption that an incarcerated

defendant’s income will be insufficient to pay a maximum

fine. Nor do we adopt the multifactor test proposed by

defendant. We also reject defendant’s proposal that a

sentencing court hold a separate hearing to determine the

amount of the SCVTF penalty. The SCVTF penalty should be

assessed as part of the defendant’s sentencing hearing, not

in a separate proceeding.

20

concurrent sentence should be separately stated in the

sentencing decision”). As with respect to other

discretionary sentencing determinations, a statement of

reasons will apprise the parties, the victim, and the

public and will facilitate appellate review.

IV.

The judgment of the Appellate Division is reversed,

and the matter is remanded to the sentencing court for

resentencing, limited to a reconsideration of defendant’s

SCVTF penalty in accordance with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and

FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join

in JUSTICE PATTERSON’s opinion. JUDGE RODRÍGUEZ

(temporarily assigned) did not participate.

21

SUPREME COURT OF NEW JERSEY

NO. A-44 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS BOLVITO,

Defendant-Appellant.

DECIDED March 31, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

REVERSE AND

CHECKLIST

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE FERNANDEZ-VINA X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) --------------------- ------------------

JUDGE CUFF (t/a) X

TOTALS 6

1