State v. William A. Case, Jr. (072688)

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. William A. Case, Jr. (A-45-13) (072688)

Argued October 7, 2014 -- Decided December 2, 2014

ALBIN, J. writing for a unanimous Court.

In this case, the Court reviews whether the trial court misapplied the sentencing principles of the Code of

Criminal Justice in imposing a sentence that includes a parole disqualifier.

Defendant waived his right to a jury trial and was convicted of second-degree luring, among other crimes,

at the conclusion of a bench trial. The convictions were based on Internet conversations between defendant and a

law enforcement officer impersonating a fourteen-year-old female named “Amanda.”

The State’s primary witness was Detective Christopher Hallet of the Atlantic County Prosecutor’s Office

Computer Crimes Unit. In August 2008, Detective Hallet created a fictitious online profile of a fourteen-year-old

female named Amanda and placed her profile in an Internet chat room. Shortly thereafter, on August 14, 2008,

defendant directly contacted Amanda through instant messaging. Over the course of the next six weeks, defendant

engaged in four additional online conversations with Amanda, discussing intimate and sexually explicit subjects.

On several occasions, they discussed the possibility of engaging in sexual acts. During their final talk on September

24, 2008, defendant agreed to meet Amanda that day at “The Brickworks” in Mays Landing. After defendant pulled

his truck into The Brickworks parking lot, law enforcement officers took him into custody. Following his arrest,

defendant was interviewed by the police. He claimed that he did not intend to do anything with Amanda and only

“wanted to explain to her that this isn’t right.”

Defendant testified and offered a diminished-capacity defense. Then twenty-nine years old, defendant

stated that during his years as a professional firefighter and emergency medical technician (EMT), he experienced

traumatic events that caused him to suffer a mental breakdown. He repeated that he did not intend to engage in

sexual acts with Amanda. He denied using the Internet to search for “child pornographic materials,” and police did

not find any such materials on his home computer or in his apartment. Defendant called three mental health experts

to support his diminished-capacity defense. All three expressed the view that defendant suffered from post-

traumatic stress and did not possess the requisite mental state to commit the crimes charged. The defense also called

a number of character witnesses who testified to defendant’s trustworthiness and good reputation in the community.

The State’s expert rejected the validity of the diminished-capacity defense, finding that defendant “engaged in a

series of purposeful goal-directed behaviors” that led him to an intended sexual liaison with a minor.

In finding defendant guilty, the trial court rejected the defense of diminished capacity. The court accepted

the testimony that events witnessed by defendant as an EMT and firefighter, such as the discovery of dead children,

had “a traumatic effect” on him. Nonetheless, it did not believe that defendant’s psychological problems deprived

him of the ability to engage in purposeful conduct. The court highlighted that defendant was able to navigate the

Internet and into chat rooms, and that defendant had visited Internet chat rooms “to speak to females for ten years”

before conversing online with Amanda.

The same judge who presided over the bench trial imposed defendant’s sentence. Defendant presented nine

mitigating factors and the State presented two aggravating factors. The court found mitigating factor seven only --

no history of prior delinquency or criminal activity. The Court addressed two other proposed mitigating factors that

it rejected, but it did not give any reasons for disregarding the remaining factors advanced by defendant. The Court

found both aggravating factors proposed by the State, aggravating factor three -- risk that defendant will commit

another offense, and nine -- need for deterrence.

Defendant’s most serious offense, attempted luring, is a second-degree crime with a range of imprisonment

between five and ten years. The trial court imposed an aggregate custodial term of eight years with a four-year

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parole disqualifier. In addition, the court ordered defendant placed on parole supervision for life, that he register as

a sex offender, that he forfeit his public employment as a firefighter, that he not possess a device with Internet

capability unless required for employment, and that he submit to random searches of his computer or other Internet-

capable device.

The Appellate Division affirmed defendant’s conviction and sentence in an unpublished opinion. This

Court granted defendant’s petition for certification limited to the issue of whether he was properly sentenced to a

discretionary parole disqualifier. 216 N.J. 361 (2013).

HELD: The sentencing proceeding in this case was flawed for several reasons, including the trial court’s finding of a

critical aggravating factor that was not based on credible evidence in the record. The trial court also failed to articulate

clearly how the aggravating and mitigating factors were balanced to arrive at the sentence.

1. In determining the appropriate sentence to impose within the statutory range, judges first must identify any

relevant aggravating and mitigating factors. The finding of any factor must be supported by competent, credible

evidence in the record. Whether a sentence should gravitate toward the upper or lower end of the range depends on a

balancing of the relevant factors. To facilitate meaningful appellate review, trial judges must explain how they

arrived at a particular sentence. (pp. 15-19)

2. The sentencing court, when clearly convinced that the aggravating factors substantially outweigh the mitigating

factors, may sentence a defendant to a minimum term not to exceed one-half of the term allowed by the statute. In

doing so, however, the court must specifically place on the record the aggravating factors which justify the

imposition of a minimum term. (pp. 19-20)

3. Here, sentencing jurisprudence requires that the Court vacate defendant’s sentence. First, the weight given by the

trial court to aggravating factor three, the risk that defendant will commit another offense, was based not on credible

evidence in the record, but apparently on the unfounded assumption that defendant had pursued minors through the

Internet on previous occasions. The trial court did not give a reasoned explanation for its conclusion that this first-

time offender presented a risk to commit another offense. (pp. 20-22)

4. The trial court also did not sufficiently explain its reason for placing particular emphasis on aggravating factor

nine—the need for both specific and general deterrence. Although the Court does not suggest that aggravating

factor nine cannot be credited here, the issue is how much weight should be given to that factor. In this case, the

court did not adequately explain its decision to give that factor “particular emphasis.” (pp. 22-23)

5. Defendant presented nine mitigating factors, and yet the court addressed only three. Evidence in the record -- if

credited by the trial court -- might have supported a finding of some of the other factors. The court was obliged to

give reasons for rejecting mitigating factors brought to its attention or for accepting them if sufficiently grounded in

the evidence. In addition, the trial court did not engage in a qualitative analysis of the sentencing factors it found,

which was essential before imposing a period of parole disqualification. Further, on the record before the Court,

there is insufficient support for the trial court’s conclusion that, clearly and convincingly, the aggravating factors

substantially outweighed the mitigating factors. (pp. 23-26)

The judgment of the Appellate Division is REVERSED, defendant’s sentences are VACATED, and the

matter is REMANDED to the trial court to conduct a sentencing proceeding consistent with this opinion within

thirty days. The new proceeding will include current and relevant information on an appropriate sentence.

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

SOLOMON; and JUDGE CUFF (temporarily assigned); join in JUSTICE ALBIN’s opinion.

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SUPREME COURT OF NEW JERSEY

A-45 September Term 2013

072688

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM A. CASE, JR., a/k/a

WILLIAM ANTHONY CASE,

Defendant-Appellant.

Argued October 7, 2014 – Decided December 2, 2014

On certification to the Superior Court,

Appellate Division.

Michael J. Confusione argued the cause for

appellant (Hegge & Confusione, attorneys).

Kathleen E. Bond, Assistant Prosecutor,

argued the cause for respondent (James P.

McClain, Atlantic County Prosecutor,

attorney; Deborah A. Hay, Special Deputy

Attorney General, of counsel and on the

brief).

JUSTICE ALBIN delivered the opinion of the Court.

The New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to

2C:104-9, sets forth detailed sentencing guidelines to channel

the discretion of trial judges to ensure fair and uniform

sentences. This approach is intended to minimize the potential

for idiosyncratic and disparate sentencing. Our judges are

given wide discretion to sentence within the range prescribed by

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a criminal statute, but that discretion is not unconstrained.

In fixing a sentence within the statutory range, a judge must

determine whether specific aggravating or mitigating factors are

grounded in credible evidence in the record and then weigh those

factors. A period of parole disqualification may be imposed,

but only if the judge clearly and convincingly determines that

“the aggravating factors substantially outweigh the mitigating

factors.” N.J.S.A. 2C:43-6(b). Central to the success of this

process is the requirement that the judge articulate the reasons

for imposing sentence.

In this case, the sentencing judge found a critical

aggravating factor based on unfounded assumptions rather than

evidence in the record. That unsupported factor was then used

to justify not only a sentence at the higher end of the range,

but also a parole disqualifier. In addition, the judge failed

to articulate reasons to justify the sentence -- in particular,

how the aggravating and mitigating factors were qualitatively

weighed in coming to the term of imprisonment for this first-

time offender. The Appellate Division affirmed this flawed

sentencing process.

Accordingly, we are compelled to reverse the judgment of

the Appellate Division, vacate the sentence, and remand for new

sentencing proceedings.

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I.

A.

At the conclusion of a bench trial in March 2012, a

Superior Court judge convicted defendant, William A. Case, Jr.,

of five counts of second-degree attempted luring of a minor,

N.J.S.A. 2C:13-6; five counts of third-degree attempted

endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A.

2C:24-4; and one count of fourth-degree attempted criminal

sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(b).

Defendant was acquitted of second-degree attempted sexual

assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c).1 The

convictions were based on Internet conversations between

defendant and a law enforcement officer impersonating a

fourteen-year-old female named “Amanda.”

The State’s primary witness was Detective Christopher

Hallet of the Atlantic County Prosecutor’s Office Computer

Crimes Unit. In August 2008, Detective Hallet created a

fictitious online profile of a fourteen-year-old female named

Amanda. Detective Hallet assumed the identity of Amanda on the

Internet. In the profile created for Amanda, Detective Hallet

presented the photograph of a fourteen-year-old girl and

1 Defendant waived his right to a jury trial.

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described her interests as “cheerleading” and “hanging with her

friends.”2

After Detective Hallet placed Amanda’s profile in an

Internet chat room, defendant directly contacted her through

instant messaging. Instant messaging allowed defendant to

engage in private Internet conversations with Amanda unobserved

by others in the chat room. During his first conversation with

Amanda on August 14, 2008, defendant identified himself as a

twenty-five-year-old male from Absecon, and she identified

herself as a fourteen-year-old female high school student from

the Mays Landing area. Their hour-long conversation touched on

intimate and sexually explicit subjects. Here are some

examples.

Defendant asked Amanda whether she was a virgin and, at one

point, commented that he would have asked her out if she were

not so young. She replied, “it would be cool to go out with an

older guy . . . with a driver’s license.” During this Internet

conversation, defendant sent a photograph of himself and asked

Amanda if he was “cute enough to jump, roll down on top of, and

give [] a kiss.” He also inquired about her sexual experiences,

the size of her breasts, and whether she would “walk around

naked for [him].” Their chat was sprinkled with Internet

2 The photograph was of a female police officer when she was

fourteen years old.

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abbreviations, such as LOL (laugh out loud), and emoticons, such

as a smiley face and a face with a tongue sticking out. The

conversation developed from defendant saying, “[m]aybe in a

couple of years, we could hook up,” to asking Amanda if she

would “want to have sex.” When Amanda inquired whether he

wanted to have sex, he said, “yeah,” and when she asked where,

he said, “[y]our place . . . [o]r my place,” but added, “the age

thing scares me.”

More than three weeks later, on September 8, 2008,

defendant initiated a second hour-long Internet chat with Amanda

and asked if she still wanted to “hook up.” Again, defendant

engaged in a sexually explicit conversation with Amanda. He

also asked a number of times whether he could go to her home.

At one point, he questioned whether she was “the cops” because

he was not “about to lose [his] life because of this.”

Consistent with the first conversation, he asked if she would

“get naked for” him and suggested that they could “fool around

in the backseat” of his truck.

On September 17 and 22, 2008, defendant again initiated

online chats with Amanda. In those conversations, defendant

continued to ask Amanda sexually explicit questions. He also

asked for directions to her house, and the two discussed the

possibility of engaging in sexual acts. During their fifth and

final online talk, on September 24, defendant and Amanda again

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discussed possibly engaging in sexual acts. They agreed to meet

that day at “The Brickworks” in Mays Landing. After defendant

pulled his truck into The Brickworks parking lot, law

enforcement officers took him into custody. Following his

arrest, defendant was interviewed by the police. He claimed

that he did not intend to “do anything with [Amanda]” and only

“wanted to explain to her that this isn’t right.”

Defendant testified at his trial and offered a diminished-

capacity defense. Defendant, then twenty-nine years old, stated

that during his years as a professional firefighter and

emergency medical technician (EMT), he experienced traumatic

events that caused him to suffer a mental breakdown. He

explained that the Internet was a “fantasy world[,] . . . an

escape from what [he] had not been able to do out in society,”

and that he would not ordinarily speak with persons who

identified themselves as minors. He repeated that he did not

intend to engage in sexual acts with Amanda. He denied using

the Internet to search for “child pornographic materials,” and

indeed the police did not find any such materials on his home

computer or in his apartment, which were searched pursuant to a

warrant.

Defendant called three mental health experts to support his

diminished-capacity defense. Dr. Kenneth J. Weiss, a

psychiatrist, testified that defendant suffered from a number of

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mental disorders, including post-traumatic stress disorder

(PTSD). He explained that there was no “clinical evidence that

[defendant] would ever have any interest in fourteen-year-old

girls in reality.” Dr. Elliot Atkins, a psychologist, testified

that defendant’s work experience caused him “elevated levels of

anxiety from the post-traumatic stress disorder,” which, in

turn, led him to create a “fantasy world” on the Internet and to

chat with Amanda. He also opined that defendant was chronically

depressed and suicidal. Another psychologist, Dr. John Hubert

White, who treated defendant for PTSD, expressed his opinion

that despite defendant’s Internet chats with Amanda, defendant

did not intend to have “sexual relations with her.” All three

experts expressed the view that defendant did not possess the

requisite mental state to commit the crimes charged.

The State’s expert psychiatrist, Dr. Daniel Paul

Greenfield, rejected the validity of a diminished-capacity

defense, finding that defendant “engage[d] in a series of

purposeful goal-directed behaviors” that led him to an intended

sexual liaison with a minor.

The defense also called a number of character witnesses,

fellow firefighters, family members, and friends, who testified

to defendant’s trustworthiness and good reputation in the

community.

B.

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In finding defendant guilty of attempted luring, attempted

child endangerment, and attempted criminal sexual contact, the

trial court rejected the defense of diminished capacity. The

court accepted the testimony that events witnessed by defendant

as an EMT and firefighter, such as the discovery of dead

children, had “a traumatic effect” on him. The court also

accepted the diagnoses of the expert witnesses, all of whom

agreed that defendant suffered from “PTSD, moderate to severe

depression, and lack of judgment.” The court, however, did not

believe that defendant’s psychological problems deprived him of

the ability to engage in purposeful conduct. The court found

that defendant’s ability to perform as an exemplary firefighter

and EMT was inconsistent with the notion that he was “so

traumatized by the events in his life” that he was living in a

fantasy world on the Internet or impaired in understanding the

nature of his online conduct.

The court rejected the psychiatric and psychological expert

testimony of the defense witnesses and adopted the testimony

offered by the State’s expert, Dr. Greenfield. The court

concluded that “defendant acted purposely, intentionally, and

with the goal to meet and have a sexual liaison with a fourteen-

year-old girl.” The court highlighted that defendant was able

to navigate through the Internet and into chat rooms, that he

did so since he was fifteen years old, and that he visited a

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chat room “entitled older for younger.” In particular, the

court noted that defendant had visited Internet chat rooms “to

speak to females for ten years” before conversing online with

Amanda. The court also emphasized that defendant, at age

twenty-five, was well versed in using Internet jargon and

emoticons. Finally, the court dismissed defendant’s explanation

given to police after his arrest -- that “he thought [Amanda]

was eighteen or nineteen” and that “he had no intentions of

having sex with Amanda,” but “merely [intended] to teach her a

lesson.”

C.

The same judge who presided over the bench trial imposed

sentence. Before sentencing, defendant presented nine

mitigating factors: “defendant’s conduct neither caused nor

threatened serious harm,” N.J.S.A. 2C:44-1(b)(1); “defendant did

not contemplate that his conduct would cause or threaten serious

harm,” N.J.S.A. 2C:44-1(b)(2); “defendant acted under a strong

provocation,” N.J.S.A. 2C:44-1(b)(3); “[t]here were substantial

grounds tending to excuse or justify the defendant’s conduct,

though failing to establish a defense,” N.J.S.A. 2C:44-1(b)(4);

“[t]he victim of the defendant’s conduct induced or facilitated

its commission,” N.J.S.A. 2C:44-1(b)(5); “defendant has no

history of prior delinquency or criminal activity or has led a

law-abiding life for a substantial period of time before the

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commission of the present offense,” N.J.S.A. 2C:44-1(b)(7);

“defendant’s conduct was the result of circumstances unlikely to

recur,” N.J.S.A. 2C:44-1(b)(8); “[t]he character and attitude of

the defendant indicate that he is unlikely to commit another

offense,” N.J.S.A. 2C:44-1(b)(9); and “[t]he imprisonment of the

defendant would entail excessive hardship to himself or his

dependents,” N.J.S.A. 2C:44-1(b)(11).

The State presented two aggravating factors: “[t]he risk

that the defendant will commit another offense,” N.J.S.A. 2C:44-

1(a)(3), and “[t]he need for deterring the defendant and others

from violating the law,” N.J.S.A. 2C:44-1(a)(9). In support of

those aggravating factors, the State contended that over an

approximately six-week period, “defendant doggedly went on the

computer on at least five occasions . . . in search of [the]

same young girl.” The State submitted that defendant did not

meet Amanda online by happenstance, but instead “[made] a

concerted effort to reach [out] to her.”

Defense counsel argued that neither aggravating factor

applied because the offense was aberrational -- no evidence was

“presented that [defendant] ever committed an offense like this

before.” The defense stressed that, at the time of the offense,

defendant was suffering from PTSD and depression and that, in

the four years since his arrest, he had been offense-free. The

defense also noted that defendant had led a law-abiding and

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honorable life as a firefighter, was engaged to be married, and

was the father of three young children -- one just three weeks

old -- whom he supported. Finally, the defense contended that

deterrence was not a factor because defendant was subject to

Megan’s Law registration and community supervision for life.

Speaking directly to the court, defendant expressed remorse

and stated that he remained in therapy to “address [his] issues”

and “to become a better person.” One of defendant’s sisters

told the court that he was a “great brother” as well as a “good

father” and “good uncle.” Another sister recited the hardships

her family had suffered since defendant was taken into custody.

Last, his mother stated that defendant “was doing well in

treatment” and had “kept his family intact.” She expressed her

fear that her son would “come out of [prison], a broken man,

more broken than he is right now.”

In imposing sentence, the court generally incorporated the

findings it made when it adjudicated defendant guilty of the

various offenses related to the Internet chats. The court

specifically found mitigating factor seven applicable because

defendant had no history of criminal, juvenile, or domestic-

violence offenses and because he otherwise had led a law-abiding

life. The court rejected the defense’s contention that

“defendant did not contemplate that his conduct would cause . .

. serious harm,” mitigating factor two, N.J.S.A. 2C:44-1(b)(2),

13

stating that it had “discounted the testimony of the defense

experts” in convicting defendant. The court also rejected the

defense’s argument in support of mitigating factor five,

N.J.S.A. 2C:44-1(b)(5) -- that Detective Hallet induced or

facilitated the crime. The court noted that defendant initiated

the conversations with Amanda and steered them in a sexual

direction. However, the court did not give any reasons for

disregarding the remaining mitigating factors advanced by

defendant.

The court found aggravating factors three, N.J.S.A. 2C:44-

1(a)(3) (risk of defendant committing another offense), and

nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The court

placed “particular weight on aggravating factor three” for the

following reasons: (1) “defendant admitted that he had been

going into Internet chatrooms to speak to females for ten years”

before his online encounter with Amanda; (2) defendant

“testified that at least one of the chatrooms he entered was

titled, ‘Older for Younger’”; (3) defendant was “not a novice in

the world of Internet chatrooms”; (4) defendant was “well-

versed” in speaking on the Internet and in using “emoticons”;

and (5) defendant used instant messaging rather than engage

Amanda in conversation in the chat room.

The court also placed “particular emphasis on aggravating

factor nine” because “adult predators of young girls must be

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deterred” and because the “need to deter this particular

defendant and others from these types of crimes is substantial.”

Without any further analysis, the court then determined that the

aggravating factors substantially outweighed the sole mitigating

factor that defendant had previously led a law-abiding life.

The court imposed concurrent eight-year prison terms with a

four-year period of parole disqualification on the five counts

of attempted luring; concurrent three-year terms with a one-year

parole disqualifier on the five counts of attempted child

endangerment; and a concurrent one-year term on the one count of

attempted sexual contact. Defendant received an aggregate

custodial term of eight years with a four-year parole

disqualifier. The court imposed $11,305 in assessments,

penalties, and surcharges.

In addition, the court ordered that defendant be placed on

parole supervision for life, N.J.S.A. 2C:43-6.4; that he

register as a sex offender, N.J.S.A. 2C:7-2; that he forfeit his

public employment as a firefighter, N.J.S.A. 2C:51-2; that he

not possess a device with Internet capability unless required

for employment, N.J.S.A. 2C:43-6.6; and that he submit to random

searches of his computer or other Internet-capable device.

Defendant appealed.

D.

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The Appellate Division affirmed defendant’s conviction and

sentence in an unpublished opinion.3 The panel rejected

defendant’s argument that his sentence was excessive. The panel

was “satisfied the sentencing judge made findings of fact

concerning aggravating and mitigating factors that were based on

competent and reasonably credible evidence in the record, and

applied the correct sentencing guidelines.”

We granted defendant’s petition for certification “limited

to the issue of whether defendant was properly sentenced to a

discretionary parole disqualifier.” State v. Case, 216 N.J. 361

(2013).

II.

A.

Defendant argues that the court placed undue weight on

aggravating factors three (likely to reoffend) and nine (need to

deter) and overlooked mitigating factors supported by the

record. Defendant contends that in finding aggravating factor

three, the court engaged in sheer speculation by suggesting that

defendant had used the Internet in the past to target underage

females. Defendant also argues that in finding aggravating

3 Defendant raised a number of issues that he contended

undermined the legitimacy of the criminal convictions rendered

by the trial court. None of those issues are germane to the

appeal before us.

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factor nine, the court disregarded the constraints placed on

defendant through parole supervision for life, Megan’s Law

registration, and Internet restrictions. Defendant also claims

that the court paid scant attention to his psychiatric illnesses

and, in particular, gave little consideration to the hardship

his imprisonment would have on his young children. Defendant

maintains that the court failed to recognize sentencing factors

grounded in the evidence or to weigh qualitatively those it did

find. Last, defendant claims the court erred in not adequately

articulating its reasons for imposing sentence. According to

defendant, in justifying the imposition of a parole

disqualifier, the court “simply announced” that the aggravating

factors substantially outweighed the mitigating factors.

B.

The State submits that the court did not abuse its

discretion in imposing a four-year period of parole

disqualification. The State disputes the contention that the

court “merely enumerate[d] the relevant factors” and contends

that adequate reasons were placed on the record to explain how

the court arrived at the sentence. The State argues that none

of the mitigating factors advanced by defendant, other than

mitigating factor seven, finds support in the record. In light

of the court’s imposition of concurrent prison terms, the State

17

maintains that the sentence was fair and does not “shock the

judicial conscience.”

III.

A.

We begin with an overview of the principles and structure

of the sentencing scheme of the Code of Criminal Justice. One

of the Code’s paramount goals is to eliminate arbitrary and

idiosyncratic sentencing so that similarly situated defendants

receive comparable sentences. State v. Natale, 184 N.J. 458,

485 (2005). Ensuring a reasonable degree of uniformity in

sentencing is an essential feature of our system of justice.

Ibid.

To achieve that end, the Code has established a framework

of structured discretion within which judges exercise their

sentencing authority. Ibid. Crimes are classified as first,

second, third, or fourth degree crimes in descending order of

seriousness, and each degree contains a range within which a

defendant may be sentenced. N.J.S.A. 2C:43-6(a). Although

judges generally exercise their discretion within the given

range, State v. Roth, 95 N.J. 334, 359 (1984), in specifically

defined circumstances, judges may impose sentences outside of

the statutory range.4 In this case, defendant was found guilty

4 Under circumstances permitted by the Code, judges may sentence

a defendant to an extended-term sentence above the ordinary

18

of attempted luring, a second-degree crime with a range of

imprisonment between five and ten years, N.J.S.A. 2C:43-6(a)(2);

attempted child endangerment, a third-degree crime with a range

of between three and five years, N.J.S.A. 2C:43-6(a)(3); and

attempted sexual contact, a fourth-degree crime with a range of

up to eighteen months, N.J.S.A. 2C:43-6(a)(4).

In determining the appropriate sentence to impose within

the range, judges first must identify any relevant aggravating

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

that apply to the case. State v. Fuentes, 217 N.J. 57, 72

(2014). The finding of any factor must be supported by

competent, credible evidence in the record. Roth, supra, 95

N.J. at 363. Speculation and suspicion must not infect the

sentencing process; simply put, the finding of aggravating or

mitigating factors must be based on evidence.

Mitigating factors that “are called to the court’s

attention” should not be ignored, State v. Blackmon, 202 N.J.

283, 297 (2010), and when “amply based in the record . . . ,

they must be found,” State v. Dalziel, 182 N.J. 494, 504 (2005).

In short, mitigating factors “supported by credible evidence”

range, State v. Pierce, 188 N.J. 155, 161 (2006), to a “prison

term appropriate to an offense one degree lower,” State v.

Megargel, 143 N.J. 484, 512 (1996), or even to a probationary

term for a crime with a presumption of incarceration, State v.

Jarbath, 114 N.J. 394, 414-15 (1989).

19

are required to “be part of the deliberative process.” Dalziel,

supra, 182 N.J. at 505.

Whether a sentence should gravitate toward the upper or

lower end of the range depends on a balancing of the relevant

factors. Fuentes, supra, 217 N.J. at 72. “[W]hen the

mitigating factors preponderate, sentences will tend toward the

lower end of the range, and when the aggravating factors

preponderate, sentences will tend toward the higher end of the

range.” Natale, supra, 184 N.J. at 488. The balancing process,

however, is more than counting whether one set of factors

outnumbers the other. Fuentes, supra, 217 N.J. at 72. Rather,

the court must qualitatively assess the relevant aggravating and

mitigating factors, assigning each factor its appropriate

weight. Id. at 72-73.

To facilitate meaningful appellate review, trial judges

must explain how they arrived at a particular sentence. Id. at

74; see also R. 3:21-4(g) (“[T]he judge shall state reasons for

imposing [a] sentence including . . . the factual basis

supporting a finding of particular aggravating or mitigating

factors affecting sentence.” (emphasis added)). Appellate

review of sentencing is deferential, and appellate courts are

cautioned not to substitute their judgment for those of our

sentencing courts. State v. Lawless, 214 N.J. 594, 606 (2013).

But the deferential standard of review applies only if the trial

20

judge follows the Code and the basic precepts that channel

sentencing discretion. When the aggravating and mitigating

factors are identified, supported by competent, credible

evidence in the record, and properly balanced, we must affirm

the sentence and not second-guess the sentencing court, Natale,

supra, 184 N.J. at 489, provided that the sentence does not

“shock the judicial conscience,” Roth, supra, 95 N.J. at 365.

On the other hand, if the trial court fails to identify relevant

aggravating and mitigating factors, or merely enumerates them,

or forgoes a qualitative analysis, or provides little “insight

into the sentencing decision,” then the deferential standard

will not apply. See State v. Kruse, 105 N.J. 354, 363 (1987).

We now briefly turn to our jurisprudence on discretionary

parole disqualifiers.

B.

The sentencing court, when “clearly convinced that the

aggravating factors substantially outweigh the mitigating

factors,” may sentence a defendant to “a minimum term not to

exceed one-half of the term” allowed by the statute. N.J.S.A.

2C:43-6(b). In doing so, however, the court must “specifically

place on the record the aggravating factors . . . which justify

the imposition of a minimum term.” N.J.S.A. 2C:44-1(f)(1).

In Kruse, supra, we compared the standard for sentencing to

a term within the range (whether the court is persuaded “there

21

is a preponderance of aggravating or mitigating factors”) to the

standard for imposing a parole disqualifier (whether the court

is “clearly convinced that the aggravating factors substantially

outweigh the mitigating factors”). 105 N.J. at 359 (internal

quotation marks omitted); see N.J.S.A. 2C:43-6(b). We

emphasized that “[t]he different standard reflects the fact that

‘periods of parole ineligibility are the exception and not the

rule. They are not to be treated as routine or commonplace.’”

Ibid. (quoting State v. Martelli, 201 N.J. Super. 378, 382-83

(App. Div. 1985)). Again, critical to the sentencing process

and appellate review is the need for the sentencing court to

explain clearly why an aggravating or mitigating factor

presented by the parties was found or rejected and how the

factors were balanced to arrive at the sentence. Fuentes,

supra, 217 N.J. at 73.

IV.

Applying the principles of our sentencing jurisprudence

here requires that we vacate defendant’s sentence.

A.

First, the weight given by the trial court to aggravating

factor three, “[t]he risk that the defendant will commit another

offense,” N.J.S.A. 2C:44-1(a)(3), was based not on credible

evidence in the record but apparently on the unfounded

assumption that defendant had pursued minors through the

22

Internet on previous occasions. Although defendant admitted to

visiting Internet chat rooms since he was fifteen years old and

communicating with females -- and at one point visiting a chat

room entitled, “Older for Younger” -- the record does not

support the conclusion that he was consorting with or trolling

for minors as an adult. Communicating on the Internet through

slang and the use of emoticons is not evidence of a penchant for

criminal activity. Although defendant admitted to visiting a

chat room, “Older for Younger,” the record does not reveal

defendant’s age when he did so or the nature of the chat room.

Indeed, at all times, defendant denied ever seeking to sexually

importune a minor.

At one point during the first Internet chat, Amanda asked

defendant if he ever had a younger girlfriend, and he responded,

no, and then expanded by saying that he did have two prior

girlfriends who were about three years younger. During his

police interview after his arrest, defendant denied chatting

with “any other younger girls.” Defendant, moreover, denied

having “any kid porn” on his computer, and a police search of

his computer and home executed pursuant to a warrant evidently

did not uncover any such incriminating evidence. Tellingly,

during the trial, in framing a question to the State’s expert,

the trial judge referred to the lack of evidence tying defendant

to other incidents similar to the one with Amanda: “all we know

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[is] that [defendant] was talking to women. We don’t know

anything about it, whether it was talking to children . . . all

we know is he was on the [I]nternet . . . for a period of ten

years.”

Additionally, the court’s finding of mitigating factor

seven, N.J.S.A. 2C:44-1(b)(7) -- that defendant had led a law-

abiding life and had no history of prior criminal or delinquent

conduct -- stood as a counterpoise to the finding of a risk that

defendant was likely to commit another offense. Although we do

not presume that aggravating factor three cannot coexist with

mitigating factor seven, here the trial court’s finding of this

aggravating factor is not grounded in competent, credible

evidence in the record. See Roth, supra, 95 N.J. at 363. The

court did not give a reasoned explanation for its conclusion

that this first-time offender presented a risk to commit another

offense.

B.

The trial court also did not sufficiently explain its

reason for placing “particular emphasis on aggravating factor

nine” -- the need for both specific and general deterrence.

(Emphasis added). We share the trial court’s view that “adult

predators of young girls must be deterred,” but we also have

recognized “that general deterrence unrelated to specific

deterrence has relatively insignificant penal value.” Jarbath,

24

supra, 114 N.J. at 405; see State v. Gardner, 113 N.J. 510, 519-

20 (1989) (“‘[T]he need to deter’ . . . encompasses two types of

deterrence: deterring (a) ‘the defendant’ and (b) ‘others’ from

committing crime.”). The undisputed medical testimony was that

this first-time offender suffered from PTSD and depression, and

in the four years between his arrest and trial, he underwent

psychological therapy. In those four years, by all accounts, he

was law-abiding and helping to raise and support a family. Upon

his release from prison, moreover, defendant will be subject to

parole supervision for life, Megan’s Law registration, and

random searches of his computer. Although we do not suggest

that aggravating factor nine cannot be credited here, the issue

is how much weight should be given to that factor. In this

case, the court did not adequately explain its decision to give

that factor “particular emphasis.”

C.

At his sentencing, defendant presented nine mitigating

factors for the court’s consideration, and yet the court

addressed only three, finding mitigating factor seven and

rejecting mitigating factors two and five. Mitigating factors

“called to the court’s attention” should not be simply ignored.

Blackmon, supra, 202 N.J. at 297. It is clear that some

mitigating factors deserved thoughtful consideration. For

example, the court should have explained why it was rejecting

25

mitigating factor eight (“defendant’s conduct was the result of

circumstances unlikely to recur”), mitigating factor nine

(“[t]he character and attitude of the defendant indicate that he

is unlikely to commit another offense”), and mitigating factor

eleven (“[t]he imprisonment of the defendant would entail

excessive hardship to himself or his dependents”). See N.J.S.A.

2C:44-1(b)(8), (9), and (11). Evidence in the record -- if

credited by the trial court -- might have supported a finding of

those factors.

At the time of trial, defendant was twenty-nine years old

and lived with his fiancée, who was pregnant with their baby,

and with their two-year-old daughter and his fiancée’s seven-

year-old daughter. Defendant had worked in Atlantic City as a

firefighter and emergency medical technician, and also had

served as a volunteer firefighter. Fellow workers and friends,

at trial, spoke of his otherwise good character and reputation.

We do not suggest that the trial court was required to

credit other mitigating factors beyond those it found. But the

court was obliged to give reasons for rejecting those mitigating

factors brought to its attention or accepting them if

sufficiently grounded in the evidence. Additionally, the court

was required to explain the weight it assigned to the factors it

found.

D.

26

We also conclude that the trial court did not engage in a

qualitative analysis of the sentencing factors it found, as

required by Kruse. The qualitative balancing of the factors was

essential before imposing a period of parole disqualification.

See Fuentes, supra, 217 N.J. at 72-73. We realize that any

qualitative analysis would have been defective because the court

imported into aggravating factor three the unfounded assumption

that defendant had previous online encounters with minors.

Further, on the record before us, there is insufficient support

for the trial court’s conclusion that, clearly and convincingly,

the aggravating factors substantially outweighed the mitigating

factors. See N.J.S.A. 2C:43-6(b).

We further note that the sentences imposed on the luring

and endangering convictions are internally inconsistent. The

court did not explain how, while weighing the same sentencing

factors, it arrived at a sentence above the midpoint for

attempted luring (eight years in the second-degree range between

five and ten years) and below the midpoint for attempted

endangering (three years in the third-degree range between three

and five years).

In conclusion, the sentencing proceeding in this case was

flawed for multiple reasons, and therefore we are compelled to

vacate the sentences on all charges and remand for a new

sentencing hearing.

27

V.

At the new sentencing hearing, the court should give full

consideration to all relevant evidence and all relevant

sentencing factors as of the day defendant stands before the

court. State v. Randolph, 210 N.J. 330, 354 (2012). As such,

the sentencing court may consider defendant’s conduct and

comportment while imprisoned, whether positive or negative.

Defendant is entitled to bring to the court’s attention any

rehabilitative or other constructive measures he has taken in

the intervening years. The State, likewise, is not limited in

its presentation. The only restriction placed on both parties

is that the evidence presented be competent and relevant.

VI.

For the reasons expressed, we reverse the judgment of the

Appellate Division and vacate defendant’s sentences for

attempted luring, attempted child endangerment, and attempted

sexual contact. We remand to the trial court to conduct a

sentencing proceeding consistent with this opinion within thirty

days.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON,

FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily

assigned) join in JUSTICE ALBIN’s opinion.

28

SUPREME COURT OF NEW JERSEY

NO. A-45 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM A. CASE, JR., a/k/a

WILLIAM ANTHONY CASE,

Defendant-Appellant.

DECIDED December 2, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice Albin

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

REVERSE/

CHECKLIST VACATE/

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 7

29