State v. Pennington

STEIN, J.,

concurring in part and dissenting in part.

The State’s appeal as of right, based on the dissent below, contests the Appellate Division’s holding that the aggregate sentence imposed on defendant was excessive. 301 N.J.Super. 213, 221 , 693 A.2d 1222 (1997). On indictment 224-01-93(224), defendant was convicted of two counts of second-degree burglary and sentenced to two consecutive ten-year prison terms, each with a five-year period of parole ineligibility. On indictment 432-03-94(432), defendant was convicted of two counts of first-degree kidnapping and received two extended-term life sentences on those offenses, each with a twenty-five year period of parole ineligibility. He was also convicted of two counts of first-degree armed robbery on which he was sentenced to two twenty-year terms. Defendant was also convicted of second-degree burglary for which he was sentenced to an extended term of twenty years. The aggregate sentence was life plus twenty years, with a thirty-five year parole disqualifier.

The Court’s opinion is troubling in several respects. First, it does not address directly the only issue before us on appeal — the excessiveness of the aggregate sentence. Instead, it focuses on two collateral issues not raised by the dissent below: the presumptive extended-term sentence for first-degree kidnapping and whether twenty-five years is a mandatory or discretionary parole-ineligibility term on that sentence; and, second, whether an *365 appellate court reviewing an excess sentencing issue is prohibited from considering as a factor in its decision the disparity between a plea offer rejected by defendant and the ultimate sentence.

Second, the Court’s fragmented disposition of the sentencing issues posed by the appeal unnecessarily restricts the trial court’s discretion on remand. Both parties agree that the three extended-term sentences imposed by the trial court are illegal. Instead of vacating all three extended terms to permit the trial court to reconsider its aggregate sentence, the Court preserves one extended term on one kidnapping conviction and vacates the extended term on the other kidnapping conviction and on the burglary offense, requiring resentencing on both. The Court also requires the trial court to reconsider imposition of a parole-ineligibility term on the preserved extended sentence for first-degree kidnapping. In addition, the Court requires the trial court to reconsider its imposition of consecutive sentences on the second-degree burglary convictions pursuant to indictment 224. Thus, without addressing the excessive sentence issue, the Court preserves defendant’s life sentence, the base extended term on one first-degree kidnapping charge — and the sentence most sharply criticized by the Appellate Division’s majority — and remands the remaining sentencing issues for reconsideration.

The Court’s piecemeal disposition of the sentencing issues will undermine the reliability of the resentencing proceeding and will restrict the trial court’s ability to reconsider comprehensively all sentencing options. The more appropriate disposition would be to remand this ease to the trial court for resentencing on all convictions. In the process, the trial court will be informed that its sentencing options include the imposition of an extended-term sentence on only one of defendant’s convictions, but should also be informed that such an extended-term sentence could be imposed on one of the convictions other than first-degree kidnapping.

Moreover, the Court has overreacted to the Appellate Division’s reference to the prosecutor’s rejected plea offer and has unnecessarily and improperly imposed a blanket restriction against any *366 consideration of plea offers by appellate courts in reviewing excessive-sentence challenges. The Court’s prohibition unwisely and unduly restricts the sentencing review function of the Appellate Division.

I

The Court’s opinion details the material facts. Defendant stands convicted of charges arising from three separate criminal episodes, two on November 22, 1992, and one on December 15, 1992. On November 22,1992, defendant burglarized a hotel room in the Residence Inn on Route 1 during the early morning hours while armed with a knife that he used to threaten the occupant, James Linsell. Later that morning defendant burglarized room 541 at the Ramada Inn, robbed the victims, Kysar and Lyles, of money and property while threatening them with a scissor and a knife. To prevent interference with his escape, defendant tied the victims’ hands with rope and taped their feet. Within five minutes Kysar and Lyles freed themselves. The third incident occurred on December 15,1992, when defendant broke into room 421 at the Residence Inn and in the process struggled with Aline Dossous, a housekeeping employee.

Based on the incidents involving Linsell and Dossous, defendant was convicted of two counts of second-degree burglary and sentenced to two consecutive ten-year terms, each with five years of parole ineligibility. The incident involving Kysar and Lyles resulted in convictions on two counts of first-degree armed robbery, one count of second-degree burglary, and two counts of first-degree kidnapping.

The trial court purported to impose five concurrent extended-term sentences on defendant’s convictions for robbery, burglary, and kidnapping. However, the sentences on the two counts of first-degree armed robbery were twenty years each, within the normal range for first-degree crimes. The trial court did impose an extended-term sentence of twenty years on the second-degree burglary conviction, and concurrent extended-term sentences of *367 life with twenty-five ’years of parole ineligibility on the two first-degree kidnapping convictions. That the multiple extended-term sentences are illegal is uncontested. See N.J.S.A. 2C:44-5a(2). The critical issue is whether the sentencing proceeding before the trial court was sufficiently reliable to enable this Court to resolve the excessive sentencing issue posed by this appeal. The Court elects not to confront that issue, but decides it passively by preserving only the base term of one extended-term sentence for kidnapping, remanding for reconsideration the parole ineligibility portion of that sentence, as well as the other extended-term sentences and the consecutive feature of the second-degree burglary sentences.

No one can dispute the seriousness of defendant’s crimes. On three separate occasions he broke into hotel rooms, twice armed with a knife, and once committing armed robberies of two victims whom he then unlawfully restrained. Nor is it disputable that defendant is statutorily eligible for extended-term sentencing. See N.J.S.A 2C:44-3a. As the Court’s opinion details, defendant was sentenced to prison in July 1978, after being convicted on two counts of armed robbery, one count of robbery, and one count of rape while armed. In June 1987, defendant was sentenced to prison on the basis of convictions of burglary, aggravated assault and possession of a weapon for an unlawful purpose. Ante at 351, 712 A.2d at 1136. The nature and number of defendant’s convictions for assaultive offenses underscores both defendant’s dangerousness as well as his eligibility for extended-term sentencing.

In State v. Dunbar, 108 N.J. 80 , 527 A.2d 1346 (1987), this Court explained that in addition to the statutory prerequisites for extended-term sentencing the Code of Criminal Justice contemplates a finding by the sentencing court, before the court imposes an extended term, that the defendant’s commitment for an extended term is necessary for the protection of the public:

As originally proposed, the Code of Criminal Justice required that the court “ineorporat[e] in the record” a finding that “the defendant is a persistent offender whose commitment for an extended term is necessary for the protection of the *368 public.” [The New Jersey Penal Code, Final Report of New Jersey Criminal Law Revision Commission, Vol. I at 154 (1971).] In the process of legislative revisions that added the dangerous and mentally abnormal category (later deleted) and expanded the persistent offender and professional criminal categories, the reference to “protection of the public” was not carried forward. But we find no evidence of intent to adopt any other standard. Such a standard is consistent with the general mandate in New Jersey that the provisions of the Code be interpreted to further the general purposes of sentencing as defined in N.J.S.A 2G:l-2b, including the insurance of “the public safety by preventing the commission of offenses through the deterrent influence of sentences imposed and the confinement of offenders when required in the interest of public protection.” N.J.S.A 2C:1-2b(3).

[/& at 90-91, 527 A.2d 1346 .]

That standard, “protection of the public,” necessarily implicates a determination that the available standard sentencing options do not adequately protect the public, and that adequate protection of the public can be achieved only by imposition of an extended term. Id. at 91 , 527 A.2d 1346 . Ordinarily, the sentencing court’s inquiry concerning the need for an extended term can be satisfied by comparing the standard sentencing range for a defendant’s offense with the extended-term sentencing range for that offense.

In this case, however, the inquiry is complicated by the defendant’s convictions of multiple offenses carrying different standard and extended terms. At the sentencing hearing, the trial court expressed its intention to impose standard-term sentences on the second-degree burglary convictions under indictment 224, imposing two consecutive ten-year sentences with five years of parole ineligibility on each. The sentencing court also determined to impose concurrent sentences on the convictions involving the burglary, armed robbery, and kidnapping of Kysar and Lyles, but to order those sentences to be consecutive to the sentences on indictment 224. In that context, and assuming imposition of a standard presumptive sentence of twenty years with ten years of parole ineligibility on the kidnapping charges, consecutive to the indictment 224 sentences, defendant would have been subject to an aggregate standard-term sentence of forty years with twenty years of parole ineligibility.

*369 The sentencing transcript does not indicate that the trial court considered and rejected that sentencing option as insufficient for the protection of the public. Assuming the court did so by implication, the next question is how long an extended-term sentence is necessary to protect the public. In turn, that raises the question of which of the three offenses under indictment 432 should be the subject of the extended term.

Although the issue is not addressed in Dunbar, supra, the rationale underlying the purpose of extended-term sentencing dictates that a sentencing court confronted with a defendant convicted of multiple offenses has the discretion to select the specific conviction on which to impose an extended term. Relevant to the exercise of the court’s discretion is the court’s determination of what sentence in the aggregate adequately would serve to protect the public. Also germane is the “Code’s central premise that the punishment should fit the crime and not the criminal____ The primary motivation behind legislative creation of persistent offender status is to deal with the particular defendant in the context of the offense committed.” Dunbar, supra, 108 N.J. at 91, 527 A.2d 1346 .

As the Court’s opinion indicates, ante at 355, 360, 712 A.2d at 1138, 1141, the presumptive base extended term for first-degree kidnapping is life imprisonment, and although a parole-ineligibility term is discretionary, if one is imposed it must be for twenty-five years. The presumptive base extended term for first-degree robbery is fifty years, and the presumptive base extended term for second-degree burglary is'fifteen years. See N.J.S.A 2C:44-lf. Pursuant to the Code, the sentencing court may fix a minimum parole-ineligibility term as part of an extended-term sentence not to exceed one-half the base term (or not to exceed twenty-five years if the base term is life). See N.J.S.A 2C:43-7b. The sentencing transcript does not indicate that the sentencing court was aware that it could impose an extended term on a conviction other than kidnapping. Pursuant to the Court’s disposition, that option will also be unavailable to the sentencing court on remand. *370 But the inference is inescapable, based on the transcript of the sentencing proceeding, that the trial court failed to focus on the extent to which extended-term sentencing was necessary for the protection of the public, and was unaware of its options and the scope of its discretion in imposing an extended term. Because the reasons underlying the trial court’s sentencing disposition are inadequately stated in the record, the reliability of the sentence is questionable and the sentence should not be sustained. See State v. Roth, 95 N.J. 334, 365 , 471 A.2d 370 (1984)(noting that “appellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines .. .■ have been followed”); State v. Dunbar, supra, 108 N.J. at 94, 97 , 527 A.2d 1346 (noting that “[i]t is not necessary that every sentence be a discourse,” but observing that “the hallmark of a principled sentence will be found in the reasons stated by the court for the imposition of the sentence”).

The Code’s focus on the “offense committed” for purposes of extended-term sentencing, id. at 91 , 527 A.2d 1346 , also calls into question the appropriateness of the trial court’s imposition of an extended term on either of defendant’s kidnapping convictions. Originally, defendant was indicted on two counts of third-degree criminal restraint in respect of his actions in tying and taping Lyles and Kysar to facilitate his escape. Á few weeks prior to trial, after defendant rejected the State’s plea offer, that indictment was superseded by one charging defendant with two counts of first-degree kidnapping. (The original indictment also charged defendant with two counts of third-degree theft by unlawful taking whereas the superseding indictment charged two counts of first-degree armed robbery). Although the trial court denied defendant’s motion at the close of the State’s case for a judgment of acquittal on the kidnapping counts, the record reveals that the State’s proofs on the kidnapping counts were marginal at best. Under the Code, a person is guilty of kidnapping if “he unlawfully confines another for a substantial period ... [t]o facilitate commission of any crime or flight thereafter.” N.J.S.A. 2C:13-lb. As we *371 noted in State v. La France, 117 N.J. 583, 594 , 569 A.2d 1308 (1990),

one is confined for a substantial period if that confinement “is criminally significant in the sense of being more than merely incidental to the underlying crime,” and that determination is made with reference not only to 'the duration of the confinement, but also to the “enhanced risk of harm resulting from the [confinement] and isolation of the victim [or others]. That enhanced risk must not be trivial.”

[Quoting State v. Masino, 94 N.J. 436, 447 , 466 A.2d 955 (1983).]

The record reveals that Lyles and Kysar freed themselves after about five minutes, and arguably raises a significant question whether the enhanced risk of harm was “trivial,” or whether their confinement was “merely incidental to the underlying crime.” That issue is not before us. But the marginal quality of the State’s proofs on first-degree kidnapping surely is an appropriate factor for the trial court to consider when it selects from among defendant’s convictions that conviction on which an extended term will be imposed. Here, the trial court made no choice at all because it incorrectly assumed that it could lawfully impose multiple extended terms. In the face of the trial court’s obviously flawed approach to extended-term sentencing, the Court’s determination to preserve one extended base term for first-degree kidnapping is perplexing, particularly where so much of the sentence is being remanded for reconsideration, and undoubtedly to a different trial court judge because the sentencing judge has retired.

II

The Court also holds, although the issue is not raised by the dissent below, that “the Appellate Division erred when it found the plea offer relevant to the issue whether the sentences were manifestly excessive.” Ante at 363, 712 A.2d at 1143. I question both the correctness of and the necessity for that holding.

Although the Court strives mightily to establish that a rejected plea offer is a nullity for all purposes, ante at 362, 712 A.2d at 1142, it obviously overstates the law. A basic protection of the due process clause of the Fourteenth Amendment is that a erimi *372 nal defendant who rejects a prosecutor’s plea offer cannot be penalized by a harsh sentence solely for electing to stand trial. See United States v. Araujo, 539 F.2d 287, 291-92 (2d Cir.), cert. denied, 429 U.S. 983 , 97 S.Ct. 498 , 50 L. Ed.2d 593 (1976); United States v. Duffy, 479 F.2d 1038, 1039 (2d Cir.)(per curiam), cert. denied, 414 U.S. 978 , 94 S.Ct. 299 , 38 L. Ed.2d 221 (1973); United States v. Stockwell, 472 F.2d 1186, 1187 (9th Cir.), cert. denied, 411 U.S. 948 , 93 S.Ct. 1924 , 36 L. Ed.2d 409 (1973); United States v. Wiley, 278 F.2d 500, 504 (7th Cir.1960); Battles v. State, 482 So.2d 540, 541 (Fla.Dist.Ct.App.1986); People v. Dennis, 28 Ill.App.3d 74 , 328 N.E.2d 135, 138 (1975); State v. Baldwin, 192 Mont. 521 , 629 P.2d 222, 225-26 (1981). Similarly, the American Bar Association Standards provide:

The court should not impose upon a defendant any sentence in excess of that which would be justified by any of the protective, deterrent, or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove guilt at trial rather than to enter a plea of guilty or nolo contendere.

[3 ABA Standards for Criminal Justice, Standard 14-1.8(b) (2d ed.1980).]

Accordingly, on several occasions our courts have taken into account rejected plea offers in considering whether a defendant’s ultimate sentence after trial was the product of impermissible vindictiveness. See State v. Powell, 294 N.J.Super. 557, 568 , 683 A.2d 1175 (App.Div.1996); State v. DeLuzio, 274 N.J.Super. 101, 123 , 643 A.2d 609 (App.Div.1993), aff'd in part, 136 N.J. 363 , 643 A.2d 535 (1994); State v. Varona, 242 N.J.Super. 474, 492-93 , 577 A.2d 524 (App.Div.), certif. denied, 122 N.J. 386 , 585 A.2d 389 (1990). For purposes of the constitutional inquiry, those plea offers are hardly a nullity and must be taken into account by the reviewing court. By the same token, a court confronted with the challenge that a sentence is excessive rather than vindictive ought not be precluded from considering the rejected plea offer for whatever relevance it may have. Arguably, the plea offer’s relevance in this case was rather insignificant because it was rejected before defendant was indicted for first-degree kidnapping. On the other hand, if the State had renewed its offer of a fifteen-year base term with seven years of parole ineligibility after the superseding indictment charging kidnapping and armed robbery was *373 returned, its relevance to the excessive-sentencing issue would be greater. For the Court, however, to hold that rejected plea offers are irrelevant as a matter of law to excessive-sentencing issues is simply counter-intuitive. Our Appellate Division judges need not be prohibited from considering in an excessive-sentence context a factor that may be of obvious, although limited, relevance — the prosecutor’s pre-trial assessment of the appropriate sentence. That in this case the Appellate Division may have attached inordinate weight to the rejected plea offer is scant justification for the rigid rule of law imposed by the Court.

Ill

I agree with the Court’s determination that the trial court’s sentence is illegal and not ■ adequately explained. Unlike • the Court, I would remand the entire sentence to the trial court for resentencing without deciding the excessive-sentencing issue presented by this appeal.

For affirmance in part; reversal in part and remandment— Chief Justice PORITZ and Justices POLLOCK, O’HERN, GARIBALDI, and COLEMAN — 5.

Concur in part; dissent in part — Justice STEIN — 1.