State v. Patrick McFarlane(075938)

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 of New Jersey v. Patrick McFarlane (A-7-15) (075938)

Argued January 5, 2016 -- Decided April 7, 2016

SOLOMON, J., writing for a unanimous Court.

In this appeal, the Court determines whether a remand for resentencing before a different judge is required

after the trial judge remarked during a subsequent, unrelated status conference that he always gives sixty-year

sentences to defendants convicted by a jury of first-degree murder.

On May 4, 2008, defendant Patrick McFarlane and a co-defendant approached a group of men playing dice.

Defendant pulled out a revolver and instructed the men to stay where they were. When the men ran, defendant

chased them, firing his gun at Richard Mason and striking him in the back. As Mason lay on the ground, struggling

to breathe, defendant robbed him and fled the scene. Mason died shortly thereafter.

Defendant was charged with first-degree murder, felony-murder, and armed robbery, and second-degree

possession of a weapon for an unlawful purpose. Following a jury trial, he was convicted of all counts. During

sentencing, the State requested an aggregate term of eighty years, subject to an eighty-five percent period of parole

ineligibility under the No Early Release Act (NERA). Defendant requested a thirty-year term with thirty years’

parole ineligibility on the murder count, and a concurrent ten-year term on the robbery count, subject to NERA.

In determining the appropriate sentence, the trial judge applied three aggravating factors, noting that

defendant’s prior criminal record was extensive and serious and that he had committed the instant offense during the

only four-month time period he had not been incarcerated since he was sixteen. The judge also gave a small amount

of weight to one mitigating factor. After merging the felony murder and unlawful possession charges, the judge

imposed a sixty-year term on the first-degree murder count and a concurrent twenty-year term on the first-degree

armed robbery count, both subject to NERA.

Defendant appealed and moved to supplement the record with a transcript of a status conference in State v.

Brown, a different murder case involving the same judge that took place thirteen months after defendant’s

sentencing, as well as three judgments of conviction (JOC) by the same judge involving other defendants convicted

of murder following jury trials. The transcript of the Brown status conference shows that, after the defendant

rejected the State’s plea offer of forty-five years for first-degree murder, the trial judge stated: “I always give

defendants convicted by a jury [of first-degree murder] a minimum of 60 years NERA, and you can check my

record.” The three JOCs showed that the same judge sentenced three other defendants convicted by juries of first-

degree murder to sixty-year terms of imprisonment, subject to NERA.

The Appellate Division affirmed defendant’s conviction and sentence, concluding that the trial judge

adequately explained his reasons for finding the aggravating and mitigating factors. The panel found that the

judge’s statement during the Brown status conference and the three unrelated JOCs do not support the claim that

defendant’s sentence was arbitrary or excessive.

Approximately four months after the Appellate Division decided this matter, another panel decided State v.

Richardson in an unpublished opinion. There, defendant Lamont Richardson appealed the same trial judge’s sixty-

year sentence, citing the Brown status conference statement and the three JOCs. Although the panel held that the

judge did not violate the sentencing guidelines, it concluded that it could not ignore the judge’s statement suggesting

that he may not provide each defendant with individualized consideration during sentencing. Accordingly, the panel

remanded for resentencing of Richardson, requiring a detailed explanation of the Brown status conference statement.

At the remand hearing, the judge acknowledged that his remarks were inappropriate, but he rejected the notion that

he had a policy of giving predetermined sentences to those convicted of first-degree murder. He asserted that his

sentences were not “automatic,” explaining that he uses a five-page worksheet to assess and balance the relevant

factors and “undertakes an individualized consideration as required in every sentence.”

The Court granted defendant’s petition for certification, limited to the issue of his sentence. 223 N.J. 276

(2015).

1

HELD: The trial judge’s statement during a subsequent, unrelated status conference that he always gives sixty-year

sentences to defendants convicted by a jury of first-degree murder undermines public confidence in our system of

criminal sentencing. Consequently, the matter is remanded for resentencing by a different judge.

1. Under New Jersey’s sentencing jurisprudence, in order to resolve the tension between an individualized

sentencing approach and the goal of sentencing uniformity, a framework of structured judicial discretion was

established by the Code of Criminal Justice. Under this framework, the sentencing court must explain its analysis

and application of the relevant statutory aggravating and mitigating factors, as well as its reasons for imposing the

sentence, thereby avoiding sentencing disparity, facilitating effective appellate review, and ensuring that the

defendant, the State and the public understand the reasons for the sentence. (pp. 8-11)

2. Here, defendant’s contention that he was arbitrarily sentenced to a sixty-year term without due consideration to

the unique facts of his case is based in part on the trial judge’s sentencing record. Specifically, in the case of

Lamont Richardson, who was convicted of first-degree murder, related weapons offenses, and fourth-degree

tampering with evidence, the judge found four aggravating factors and no mitigating ones. He rejected the seventy-

two year term requested by the State, instead imposing a sixty-year term, subject to NERA. Similarly, in the case of

Damien Johnson and Brian Johnson, co-defendants who were convicted of first-degree murder and robbery and

second-degree robbery and possession of weapons for unlawful purposes and were sentenced nine months after

defendant, the judge found four aggravating factors and no mitigating ones. He again sentenced both defendants to

sixty-year terms, subject to NERA. (pp. 11-13)

3. The Court acknowledges that the record of the sentencing hearing in this matter reveals that the trial judge did

not violate the sentencing guidelines. However, a remark in open court, even in a subsequent, unrelated proceeding,

that a judge “always” sentences defendants convicted of first-degree murder to sixty years in prison improperly

suggests that the unique facts of each defendant’s case are not considered when determining the appropriate

sentence. Although the Court accords substantial deference to sentencing determinations and acknowledges the trial

judge’s explanation of his sentencing methodology given during the remand hearing in Richardson, it finds that the

Brown status conference statement, particularly when viewed in light of the trial judge’s sentencing record,

undermines public confidence in our system of criminal sentencing. Accordingly, to preserve public trust in the

sentencing framework established by our Code of Criminal Justice, the Court reverses the judgment of the Appellate

Division and remands for resentencing by another trial judge of the Mercer Vicinage. The Court offers no comment

on the appropriate sentence to be imposed. (pp. 13-15)

The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to a different trial

court judge for resentencing, consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE

CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion. JUSTICE FERNANDEZ-VINA did

not participate.

2

SUPREME COURT OF NEW JERSEY

A-7 September Term 2015

075938

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK MCFARLANE,

Defendant-Appellant.

Argued January 5, 2016 – Decided April 7, 2016

On certification to the Superior Court,

Appellate Division.

Margaret R. McLane, Assistant Deputy Public

Defender, argued the cause for appellant

(Joseph E. Krakora, Public Defender,

attorney).

Katie Mae Magee, Assistant Prosecutor,

argued the cause for respondent (Angelo J.

Onofri, Acting Mercer County Prosecutor,

attorney).

Alexander R. Shalom argued the cause for

amicus curiae American Civil Liberties Union

of New Jersey (Edward L. Barocas, Legal

Director, attorney).

JUSTICE SOLOMON delivered the opinion of the Court.

Defendant chased an unarmed man, whom he was attempting to

rob, and shot him in the back with a revolver. The victim was

alive and gasping for air after he fell to the ground, but

defendant robbed him and left him to die. Defendant was

1

convicted of first-degree murder, among other things, and

sentenced to sixty years in prison.

We are called upon to determine whether defendant’s

sentence should be vacated and the matter remanded for

resentencing before a different judge, because the trial judge

remarked during a subsequent, unrelated status conference that

he always gives sixty-year sentences to a defendant convicted by

a jury of first-degree murder. While we acknowledge the judge’s

subsequent explanation for his remarks, preservation of the

public’s confidence and trust in our system of criminal

sentencing requires that the matter be remanded for resentencing

by another judge of the same vicinage.

I.

A.

On May 4, 2008, defendant Patrick McFarlane and co-

defendant Roderick Armstrong approached a group of men playing

dice in Trenton. When defendant displayed a revolver and

instructed the players to stay where they were, they scattered

in different directions. Defendant chased and fired his

revolver at Richard Mason, striking him in the back. After

Mason fell to the ground, defendant reached into his pockets and

took money, a watch, and a chain, and then fled the scene.

Mason was alive but struggling to breathe when police arrived;

2

he died thirty minutes after being transported to a local

hospital.

The Mercer County Grand Jury indicted defendant for first-

degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); first-degree

felony murder, N.J.S.A. 2C:11-3(a)(3) and N.J.S.A. 2C:2-6;

first-degree armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:2-

6; and second-degree possession of a weapon for an unlawful

purpose, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-6. After a jury

trial, defendant was convicted of all counts.1

The record at sentencing reflects the following. The State

requested that the Court impose a sixty-year term of

imprisonment for the first-degree murder and a consecutive

twenty-year sentence for first-degree robbery. Therefore, the

aggregate sentence requested by the State was eighty years, both

with an eighty-five percent period of parole ineligibility under

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defense

counsel requested a thirty-year term of imprisonment with thirty

years of parole ineligibility on the murder count, along with a

concurrent ten-year sentence on the first-degree robbery count,

subject to NERA.

1 Co-defendant Roderick Armstrong received an aggregate twenty-

year sentence in exchange for testifying against defendant and

pleading guilty to first-degree robbery and an unrelated

carjacking.

3

The trial judge applied aggravating factor three, N.J.S.A.

2C:44-1(a)(3), noting that there was a risk the nineteen-year-

old defendant would commit a future offense because he had five

petitions and two adjudications of delinquency as a juvenile2 and

five adult arrests, and had been incarcerated since age sixteen,

except for a four-month period during which he committed Mason’s

murder and another unrelated first-degree robbery. The judge

also applied aggravating factor six, N.J.S.A. 2C:44-1(a)(6),

finding that defendant’s prior criminal record was extensive and

serious because defendant was convicted of robbery as a juvenile

and theft by unlawful taking as an adult. In addition, the

judge applied aggravating factor nine, N.J.S.A. 2C:44-1(a)(9),

finding that there was a need to deter defendant and others from

violating the law because defendant targeted and shot the victim

in the back, robbed him, and left him to die.

After discussing the three aggravating factors, the judge

also gave “a small amount of weight” to mitigating factor six,

N.J.S.A. 2C:44-1(b)(6),3 assuming that “during his incarceration

the [d]efendant chooses to work and . . . the warden at the

2 The two juvenile adjudications were for robbery and possession

of controlled dangerous substances.

3 Mitigating factor six is whether “[t]he defendant compensated

the victim or will participate in community service.” N.J.S.A.

2C:44-1(b)(6).

4

state facility . . . take[s] one-third of his income and use[s]

that to reimburse any restitution the Court has ordered.”

After mentioning his assessment of the aggravating and

mitigating factors and merging the felony murder and unlawful

gun possession charges, the judge imposed a sixty-year sentence

on the first-degree murder count and a concurrent twenty-year

term on the first-degree armed robbery count, both subject to

NERA. The judge rejected the State’s request for a consecutive

sentence on the robbery count, in part, because defendant was

nineteen years old when he committed the crime and, after

serving fifty-one years in prison,4 would be at least seventy

years of age before becoming eligible for parole.

On appeal, defendant moved to supplement the record with

(1) a transcript of a status conference that took place thirteen

months later on January 14, 2015, in a different murder case,

State v. Brown, involving the same judge (the Brown status

conference); and (2) three judgments of conviction by the same

judge involving other defendants convicted of murder following

jury trials (the three JOCs).5

4 Pursuant to NERA, eighty-five percent mandatory period of

parole ineligibility for the sixty-year imprisonment term on the

first-degree murder conviction is fifty-one years.

5Defendant also challenged two evidentiary rulings, the

prosecutor’s summation, and the jury instructions, none of which

are the subject of this appeal.

5

The transcript of the Brown status conference shows that

defendant Shaheed Brown rejected the State’s plea offer of

forty-five years for his first-degree murder charge, and the

judge then made the following statement:

I always give defendants convicted by a jury

[of first-degree murder] a minimum of 60 years

NERA, and you can check my record . . . . I

know as much as Mr. Brown thinks 45 years NERA

is unacceptable[,] my sentence, if he’s

convicted, and Mr. Brown you’re presumed

innocent, my sentence [] will be much more

than 45 years NERA. It’ll be consecutive to

the . . . [offenses] you’re convicted of by a

jury.

The three JOCs showed that the same judge sentenced other

defendants convicted by juries of first-degree murder -- Lamont

Richardson, Damien Johnson, and Brian Johnson -- to sixty-year

terms of imprisonment, subject to NERA.6

The Appellate Division affirmed defendant’s conviction and

sentence, concluding that the trial judge properly considered

and adequately explained his reasons for finding aggravating

factors three, six, and nine, as well as mitigating factor six.

In doing so, the panel explained that “the judge’s statement and

judgments of conviction in unrelated cases do not support

6 We note that the first time the judge sentenced a defendant

convicted by a jury of a first-degree murder, he imposed a

seventy-five year term, subject to NERA, on Peter Klah after

finding aggravating factors one, three, six, and nine, and no

mitigating factors.

6

defendant’s claim that his sentence here was either excessive or

arrived at in an arbitrary fashion.” The panel did not analyze

the reasonableness of the sentencing determinations in the three

JOCs, in part, because defendant did not submit the transcripts

of those sentencing proceedings.

This Court subsequently granted defendant’s petition for

certification, limited to the issue of his sentence. 223 N.J.

276 (2015).

B.

Approximately four months after the Appellate Division

decided this matter, another panel decided State v. Richardson

in an unpublished opinion. In that case, defendant Lamont

Richardson appealed the same judge’s sixty-year sentence, citing

the Brown status conference statement and the three JOCs.

Although the Richardson panel affirmed the conviction and held

that the judge did not violate the sentencing guidelines, it

concluded that it could not “ignore the judge’s own statements

in open court, which suggests strongly that he may not undertake

the ‘individualized consideration during sentencing’ to which

each defendant is entitled under the Code.” (Quoting State v.

Jaffe, 220 N.J. 114, 122 (2014)). Accordingly, the panel

remanded for resentencing and required a detailed explanation of

the judge’s statement during the Brown status conference.

7

At the remand hearing, the judge acknowledged that he made

“inappropriate” and “improper” remarks while being rushed during

the Brown status conference, but rejected the notion that he had

a policy of giving predetermined sentences to those convicted of

first-degree murder. The judge further explained that his

sentences were not “automatic”; he described the five-page

worksheet he used to assess and balance the aggravating and

mitigating factors and stated, “I strive to have every sentence

I impose to be in accord with the [Code of Criminal Justice] and

the directives of the Supreme Court . . . . [T]he court attempts

in every case, whether it’s a homicide or fourth degree, that it

undertakes an individualized consideration as required in every

sentence.”

II.

Resolving the divergence between the decisions of the

Appellate Division here and in the Richardson matter requires a

brief review of our sentencing jurisprudence.

In Jaffe, supra, we stated that “each ‘[d]efendant is

entitled to [an] individualized consideration during

sentencing.’” 220 N.J. at 122 (quoting State v. Randolph, 210

N.J. 330, 349 (2012)). This Court then explained that the

Legislature wanted trial courts to consider an individual’s

particular circumstances because “the Legislature listed as

‘general purposes’ of the sentencing statute . . .

8

‘differentiat[ion] among offenders with a view to a just

individualization in their treatment,’ N.J.S.A. 2C:1-2(b)(6).”

Id. at 120-21.

Notwithstanding the need to consider an individual’s

particular circumstances, we also recognized that one of the

“paramount goals” of the Code of Criminal Justice “is to

eliminate arbitrary and idiosyncratic sentencing so that

similarly situated defendants receive comparable sentences.”

State v. Case, 220 N.J. 49, 63 (2014) (citing State v. Natale,

184 N.J. 458, 485 (2005)). Consequently, “‘the Legislature

codified to a certain extent the traditional emphasis on

individualized sentencing,’ resulting in a ‘tension between an

individualized sentencing approach on the one hand, and the

reforms aimed at sentencing uniformity on the other.’” Jaffe,

supra, 220 N.J. at 121 (quoting Randolph, supra, 210 N.J. at

346).

To resolve this tension and engender confidence in our

system of criminal sentencing, “the Code has established a

framework of structured discretion within which judges exercise

their sentencing authority.” Case, supra, 220 N.J. at 63. The

“structured discretion” established by the Code of Criminal

Justice compels the sentencing court to explain on the record

its analysis of the statutory aggravating and mitigating factors

“with care and precision” so as “[t]o avoid disparity in

9

sentencing as the Legislature intended, to facilitate fair and

effective appellate review, and to ensure that the defendant,

the State and the public understand the reasons for the

sentence.” State v. Fuentes, 217 N.J. 57, 81 (2014). That is

accomplished, in part, by the application of Rule 3:21-4(g),

which provides that “[a]t the time sentence is imposed the judge

shall state reasons for imposing such sentence including

findings pursuant to the criteria for withholding or imposing

imprisonment . . . [and] the factual basis supporting a finding

of particular aggravating or mitigating factors affecting [the]

sentence[.]”

This Court paraphrased those principles as follows:

“[c]entral to the success of [the sentencing] process is the

requirement that the judge articulate the reasons for imposing

sentence.” Case, supra, 220 N.J. at 54. “Proper sentencing

thus requires an explicit and full statement of aggravating and

mitigating factors and how they are weighed and balanced.”

Randolph, supra, 210 N.J. at 348 (citing Natale, supra, 184 N.J.

at 488).

“The balancing process, however, is more than counting

whether one set of factors outnumbers the other.” Case, supra,

220 N.J. at 65 (citing Fuentes, supra, 217 N.J. at 72).

“Rather, the court must qualitatively assess the relevant

aggravating and mitigating factors, assigning each factor its

10

appropriate weight.” Ibid. (emphasis added) (citing Fuentes,

supra, 217 N.J. at 72-73). Hence, a sentencing judge must

engage in both quantitative and qualitative assessments of the

aggravating and mitigating factors, and only then impose a

sentence consistent with the sentencing range outlined under our

Code of Criminal Justice.

III.

A.

With this sentencing jurisprudence in mind, we turn to

defendant’s contention that the trial judge arbitrarily

sentenced him to a sixty-year term without giving consideration

to the unique facts of his case, which defendant argues is

reflected in the judge’s statement in the Brown status

conference and his sentencing record. That in turn requires us

to briefly recount the pertinent aspects of the three JOCs

involving Lamont Richardson, Damien Johnson, and Brian Johnson.7

Lamont Richardson was sentenced approximately fifteen

months before defendant. Richardson was twenty-one years old at

the time of his offense, and was convicted of (1) first-degree

murder of his ex-girlfriend; (2) related unlawful possession of

7 The parties provided the three JOCs without the associated

transcripts of the sentencing proceedings. The record therefore

does not reflect what other assessments and considerations the

judge may have applied at sentencing, other than the statutory

aggravating and mitigating factors.

11

weapons offenses; and (3) fourth-degree tampering with evidence.

The judge found aggravating factors one,8 three, six, and nine,

and no mitigating factors. After merging the weapons

convictions with the murder conviction and balancing the

aggravating and mitigating factors, the judge reviewed the

sentencing guideline range9 and concluded that the seventy-two-

year term requested by the State was too high.10 Instead, the

judge imposed a lesser sixty-year term of imprisonment, subject

to NERA, and a concurrent one-year term of imprisonment with a

six-month period of parole ineligibility for tampering with

evidence.

Damien Johnson and Brian Johnson, co-defendants but not

brothers, were both sentenced approximately nine months after

defendant was sentenced. Damien Johnson was thirty-two years

8 Aggravating factor one concerns “[t]he nature and circumstances

of the offense, and the role of the actor therein, including

whether or not it was committed in an especially heinous, cruel,

or depraved manner.” N.J.S.A. 2C:44-1(a)(1).

9 The sentencing range for first-degree murder is thirty years to

life imprisonment, with a mandatory minimum of a thirty-year

period of parole ineligibility, N.J.S.A. 2C:11-3(b)(1), and an

eighty-five percent parole disqualifier under NERA, N.J.S.A.

2C:43-7.2(d)(1). A sentence of life imprisonment is deemed to

be seventy-five years for the purpose of calculating the minimum

term of parole ineligibility pursuant to a crime of the first

degree. N.J.S.A. 2C:43-7.2(b).

10Defense counsel did not request a specific sentence and

stated, “there is a possibility for a better Mr. Richardson to

become a part of our society.”

12

old and Brian Johnson was thirty-eight when they committed

first-degree murder, N.J.S.A. 2C:11-3(a)(2) and (3), first-

degree robbery, N.J.S.A. 2C:15-1, second-degree burglary,

N.J.S.A. 2C:18-2(b), and second-degree possession of weapons for

unlawful purposes, N.J.S.A. 2C:39-4. The judge found that

Damien Johnson had six prior non-violent drug convictions, and

that Brian Johnson had three prior convictions involving

violence. For both defendants, the judge found aggravating

factors one, three, six, and nine, and no mitigating factors.

The judge concluded that the aggravating factors “substantially

outweigh[ed] and preponderate[d] over the non-existent

mitigating factors,” and sentenced both defendants to sixty-year

terms of imprisonment, subject to NERA, on the first-degree

murder count, concurrent to a fifteen-year term of imprisonment

on the first-degree robbery count. Both defendants were also

ordered to serve a five-year term of parole supervision

immediately after completing their prison terms.11

B.

We acknowledge that the record of the sentencing hearing in

this matter does not reveal that the trial court violated the

11Both Damien and Brian Johnson’s direct appeals are currently

pending before the Appellate Division. Counsel for the

defendants in those proceedings requested, among other things,

that the matters be remanded for resentencing after this Court’s

decision in this matter.

13

sentencing guidelines. Furthermore, the sentencing judge did

not make any improper comments during the course of this

proceeding. However, a remark in open court, even in a

subsequent, unrelated proceeding, that a judge “always”

sentences defendants convicted of first-degree murder to sixty

years in prison undermines public confidence that the unique

facts of a defendant’s case are considered before a sentencing

decision is made. A reasonable person might infer from the

judge’s statement during the Brown status conference that the

court arbitrarily imposes a predetermined sentence on those

convicted by a jury of first-degree murder.

While we accord substantial deference to sentencing

determinations and do not substitute our judgment for that of

the sentencing court, Fuentes, supra, 217 N.J. at 70, and while

we acknowledge the trial judge’s explanation of his sentencing

methodology given during the remand hearing in Richardson, we

find that the Brown status conference statement, particularly

when viewed in light of the trial judge’s sentencing record,

undermines public confidence in our system of criminal

sentencing. Accordingly, to preserve public trust in the

sentencing framework established by our Code of Criminal

Justice, we must reverse the judgment of the Appellate Division

and remand for resentencing by another trial judge of the Mercer

14

Vicinage. We offer no comment on the appropriate sentence to be

imposed on remand.

V.

The judgment of the Appellate Division with respect to

sentencing is reversed and the matter is remanded for

resentencing, consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and

PATTERSON; and JUDGE CUFF (temporarily assigned) join in JUSTICE

SOLOMON’s opinion. JUSTICE FERNANDEZ-VINA did not participate.

15

SUPREME COURT OF NEW JERSEY

NO. A-7 SEPTEMBER TERM 2015

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK MCFARLANE

Defendant-Appellant.

DECIDED April 7, 2016

Chief Justice Rabner PRESIDING

OPINION BY Justice Solomon

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

REVERSE AND

CHECKLIST

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA ---------------

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 6