*1 еnjoined from respondent restrained be ORDERED comply he suspension and that during period law practicing R. with 1:20-20. A.2d 495 PLAINTIFF-APPELLANT, JERSEY,
STATE OF NEW CAREY, DEFENDANT-RESPONDENT. M. JOSEPH July Argued 2001. 2001 Decided March *5 Sims, Jr., General, Gerard C. Deputy Attorney argued the (John Farmer, appellant Jr., cause for J. Attorney General of Jersey, attorney). New
Mary Baria, Virginia Defender, Deputy Assistant Public ar- (Peter gued respondent Garcia, cause for A. Acting Public Defender, attorney). Pompelio,
Richard D. submitted a brief on behalf of amicus curiae, Jersey New Crime Victims’ Law Center. opinion of the Court was delivered
COLEMAN, J. appeal This requires us to revisit the determining standard for appropriateness imposed during single sentencing proceeding following a conviction on two counts of vehicular'homicide involved victims. night defendant,
On of December Joseph Carey, got behind the wheel of his motor vehicle long after a evening of drinking beer. That ill-fated decision to while drive intoxicated two deaths. Defendant resulted in a head-on collision caused *6 of, among two of vehicular things, was other counts convicted him to The trial court sentenced consecutive seven- homicide. imprisonment three-year year on each count with a terms of count, on mandated N.J.S.A. parole disqualifier each as 2C:11- 5b(1). those and re Appellate Division vacated sentences terms, resentencing to manded to the trial court for concurrent only militating in of noting that the favor granted We presence was thе victims. Molina, 436, in in v. 775 certification this case and State 509, the today, we decide to determine whether A.2d which also Justice, N.J.S.A. 2C:1-1 to 98-4 Jersey New Code of Criminal (Code), in sentencing guidelines established State and the denied, (1985), 627, 475 Yarbough, N.J. cert. (1986), permit consecu U.S. 106 S.Ct. 89 L.Ed.2d here, where, a person in as under tive sentences cases that in more than an accident results influence of alcohol causes rule, Although adopt per a se we conclude one death. we do to impose that it not an abuse of trial court’s discretion was Appellate Accordingly, reverse consecutive sentences. we judgment trial sentences. and reinstate the court’s Division’s
I. 26, 1995, defendant, twenty-two years who was On December time, evening drinking spent playing darts and beer old at the Township, family at his father’s house Franklin with friends and there, Joyce acquaintance of and Jersey. New While he made the Snook, apartment who above Melissa two lived sisters Shortly midnight, Joyce and father. after Melissa defendant’s accompany him back to his accepted invitation to defendant’s together in left meet his The three them house to roommate. north North pick-up defendant’s truck headed on Church Road. very she
Joyce that drove fast and testified defendant Snook down, slow but he did not She defendant to became scared. asked respond. testimony nearly defendant struck a There was also firefighter way volunteer who was on his home from а firehouse. later, road, bend in speeding Minutes while around a defen- oncoming pick-up truck veered into lane of traffic and dant’s Mustang. Ferguson, collided head-on with Ford William twenty-one-year-old passenger Mustang, in the did not survive the impact. by helicopter, Melissa was airlifted from the scene Snook morning. hospital DiGangi, but she died at a later that Michael Joyce driving Mustang, who had been Snook both sus- injuries, tained severe survived but the accident. police
The first officer at the accident scene testified he sample smelled alcohol on defendant’s breath. Based on a blood morning, opined later that expert taken State’s defendant level had a .169 blood alcohol at the time of the Another accident. expert retained the State estimated that was travel- defendant *7 ing sixty-five eighty-one per and between miles hour at the time of A impact. sign traffic warned that speed the maximum safe at the twenty-five in the per curve road was miles hour. jury homicide,
A convicted defendant of two counts of vehicular 2C:11-5, auto, two N.J.S.A. and counts of assault N.J.S.A. days accident, Legisla 2C:12-1c. Twelve before defendant’s the Among ture amended the vehicular statute. homicide other the things, Legislature degree elevated the crime from third degree, punishable by imprisonment second term of five to of years. § ten L. c. 1. The amendments took effect applying December thus “to offenses committed on оr § after the effective Id. 2. date.” sentencing hearing, aggrava At the the trial court found three ting factors: the nature harm serious of the on the inflicted victims, re-offend, the that risk defendant would and need to the violating deter defendant and from others the N.J.S.A. law. (9). 2C:44-1a(2), (3), any The court mitigating did not find factors. determining aggravating After that the outweighed any factors factors, potential mitigating the court sentenced defendant to the presumptive years imprisonment term of seven three-year with a disqualifier parole of on each the two counts of vehicular homicide. concurrently should run deciding whether those sentences has consecutively, posited the trial court that the “one prevalent consideration in successive sentence become more as a multiple than and rather concurrent consecutive Thus, charges.” the trial nature of the court victims and the consecutively run that defendant’s sentences should determined in The because crime had resulted victims. defendant’s one-year to a term for each count court also sentenced defendant auto, run fourth-degree assault concurrent with each of Hence, defen- other and with the vehicular-homicide sentences. years aggregate imprison- of fourteen dant received an sentence years parole ineligibility. ment with six opinion, Appellate Division affirmed unpublished In an the convictions, on the vehicular dеfendant’s but vacated sentences Appellate Division concluded that the trial court homicides. The because, imposing abused its discretion crime, death-by-auto multiple- least of the “at in the context itself, factor, only ordinarily ... has not as the victim factor sentencing.” panel also determined resulted in consecutive weighing identifying had trial court erred Specifically, panel found aggravating mitigating factors. deaths, the two improperly trial court had double-counted given of each of the vehicular-homicide that death was element support panel also found no in the record for the offenses. The likely finding that was to reoffend or that trial court’s defendant Therefore, panel vacated the there was a need for deterrence. on vehicular convictions and consecutive sentences homicide purpose imposing trial court for the concurrent remanded to the *8 certification, 674, N.J. 165 granted all offenses. We sentences on (2000), A.2d and now reverse. 762 655
II. A. Code, the focus of our to the enactment of Prior rehabilitating reforming offenders. Yar- was on criminal laws 422
bough, supra,
637,
Generally, the Code specify does not when sentences run concurrently should they and when run should consecutively. simply The Code “multiple states that concurrently shall run consecutively or as the court determines at the time of sentence.” N.J.S.A. 2C:44-5a. recognized early We investing on that unbridled sentencing judges discretion in would inevitably lead to a lack sentencing uniformity, in Yarbough, so supra, 498 A.2d we set guidelines forth six assist trial in deciding courts impose whether to concurrent or consecutive sentences: (1) there can be no free crimes for which the system shall fit punishment
crime; (2) imposing the reasons for either a consecutive or concurrent sentence should sentencing be stated in the separately decision; (3) some reasons to be considered court should include facts relating including to the crimes, whether not: (a) objectives the crimes and their were predominantly of each independent other; (b) the crimes involved acts of violence or threats of separate violence; (c) the crimes were committed at differеnt times or rather separate places, being
than single committed so in time and as to closely indicate a place period aberrant behavior;
423
(d)
victims;
of the crimes involved multiple
any
(e)
numerous;
are to be
are
convictions for which the sentences
imposed
(4)
counting
aggravating factors;
should be no double
there
(5)
to the
offense should not
be
ordinarily
equal
successive terms for the same
offense;
first
for the
punishment
(6)
limit on the cumulation
consecutive
should be an overall outer
there
longest
of the
terms
not
to exceed the sum
for
offenses
eligible)
(including
two most
that could be
for the
term,
an extended
if
imposed
serious offenses.1
omitted).]
(footnote
[Id.
643-44,
at
sentencing courts faced with a
guideline,
on the
the third
which focuses
consecutive sentences is
See,
121,
e.g., id. at
concurrent sentencеs: defendant’s counts fourth-degree lar homicide and two counts of assault auto victims) causing bodily injuries to the their based on serious and (ii) other; objectives predominantly independent were not of each (one single defendant’s crimes involved a act of violence vehicular (iii) accident); single episode the crimes involved of aberrant weighs fourth factor in behavior. The favor of consecutive sen- tences the accident resulted in The fifth because deaths. provides factor —“whether there are numerous some convictions”— support for consecutive sentences because defendant’s four convic- sum, approach range. tions the “numerous” three factors support support concurrent sentences and two factors multiple-victims sentences. Our task is to determine whether the factors, themselves, support and numerous-convictions consecu- large degree by tive sentences. That decision is influenced to a factors, aggravating disputed which are in It this case. is however, undisputed, mitigating the trial court found no factors. give proper
When a trial court fails to for reasons imposing single sentencing proceeding, consecutive sentences at a ordinarily required resentencing. a remand should be for State v. Miller, (1987). 112, 122, A 108 N.J. 527 .2d1362 The same is true when improper the trial court double counts or considers an aggravating alleged factor in as is this casе. The reason for such appellate original remand is that courts exercise should sentenc jurisdiction 345, 355, ing sparingly. Kromphold, State v. 162 N.J. (2000); Ghertler, 383, 387-88, A 744 .2d 640 v. State N.J. (1989). why A.2d 553 An additional reason a remand is the preferred procedure may that the trial court restructure the violating process sentence on remand without the defendant’s due jeopardy rights, long or double aggregate so as the defendant’s 263, 277, Rodriguez, sentence is not increased. State v. (1984). 478 A .2d408
B. deciding whether the vehicular-homicide sentences Before concurrent, trial we address the court’s should be consecutive before, As we noted handling aggravating of the factors. identify trial Appellate Division concluded that the court erred panel ing wеighing aggravating factors. The determined impermissibly double counted “the two that the trial court had despite the fact that the deaths aggravating deaths as an factor that where the were an element of the offense.” It is well-settled offense, that fact cannot death of an individual is an element of the State sentencing purposes. aggravating used factor for be as Pineda, (1990). Hence, 119 N.J. it was rely part improper for the trial court to on the victims’ deaths as aggravating case. of an this *11 court, however, rely not on the two deaths
The trial did gravity aggravating of harm alone to establish the and seriousness bodily injuries factor. It also took into account the serious victims, by surviving which formed the basis for sustained the two fourth-degree DiGangi suffered com the two convictions. Michael injuries pound right leg, and tibia in his fractures to the femur back, Joyce of a tooth. Snook broke both of her his and the loss Although collapsed lung. a femurs and her ankles and suffered by required jury the separate the two convictions for assault auto bodily injury” had caused “serious to Snook to find that defendant 2C:12-1c,2 N.J.S.A. DeGangi, recently we held that the statu and bodily injury” aggravating tory definition of “serious and the focusing of harm inflicted on the victim” factor on the “seriousness assault-by-auto Today, fourth-degree conviction in one the State can obtain a prove ways. defendant 2C:12-1c. The State can either that the of two N.J.S.A. bodily injury, recklessly defendant was drove caused serious or that the (or tеst) bodily breathalyzer legally a and caused intoxicated refused to submit to However, injury. when defendant's accident occurred in the State Ibid. fourth-degree assault-by-auto by proving only that the conviction could obtain bodily injury. recklessly and caused defendant drove serious supra, 162 at concepts. Kromphold, N.J.
address different There, explained: we 744A.2d 640. sentencing to a victim for considers the harm a defendant caused
When a court aggrava determining gravity harm] of [the whether and seriousness of purposes engage pragmatic ting it should in a assessment of the totality factor is implicated, that who victim, offender on the to the end defendants of harm inflicted by severe sentences than inflict substantial hаrm receive more recklessly purposely injury” Although N.J.S.A. in definition of “serious bodily other defendants. 2C:11-1(b) injury enough trigger a level of severe clearly contemplates aggravating gravity [gravity harm] and seriousness factor, and seriousness of “the aggravating that factor is a broader and less precise of the harm” encompassed by discretion court the exercise sound concept pennits determining harm to the victim warrants whether the extent of the application aggravating factor.
[Ibid.] injuries Accordingly, persuaded are the extensive sus- we Joyce DiGangi trial and Michael warranted the tained Snook aggrava- gravity on the and seriousness of harm court’s reliance ting independent of the two other victims. of the deaths Appellate Division also concluded that the trial finding aggravating two other factors: deterrence court erred factor, respect and risk of re-offense. With to the deterrence Appellate Division reasoned that the vehicular-homicide statute enough Legislature substantially in was deterrence because just days penalties for that crime before defendant’s creased agree. public safety The need for accident. We do degree proportionally deterrence increase with the of the offense. (1996). Here, Megargel, State v. Legislature third-degree increased vehicular homicide from second-degree to a offense. It fоllows that the need for offense part legislative plan as of a to reduce the deterrence increased *12 slaughter mayhem and that occurs on our roads at the hands of Thus, finding the trial court was correct in a drunken drivers. need for deterrence.
Regarding whether defendant was a risk to commit
offense,
appellate
another
we have stated that “an
court should not
second-guess
finding
support
a trial court’s
of sufficient facts to
aggravating
mitigating
finding
supported by
if
O’Donnell,
117 N.J.
evidence
the record.” State
substantial
(1989).
trial court found that defen
C. Next, apply Yarbough guidelines to this case to we should be whether the vehicular-homicide sentences determine analysis by stressing begin or concurrent. We our They Yarbough guidelines just guidelines. are that — sentencing retaining promote uniformity while were intended to such, degree sentencing in the courts. As a fair of discretion Yarbough’s relating the crimes” contained in third five “facts quantitatively. guideline applied qualitatively, be should Cf. (1987) Kruse, (observing State v. “[m]erely enumerating [aggravating mitigating] factоrs decision, sentencing provide any insight into the which does not analysis”). qualitative, from a quantitative, follows not from a but may impose consecutive sen It that a court follows Yarbough support though majority of the factors tences even *13 428 See, Brown, 481, 560, e.g., v. 138
concurrent sentences.
State
N.J.
(1994)
sentencing for
(declaring
When
sentences,
impose
the court must
to
consecutive or concurrent
Yarbough
determine whether
factor under
“ren
consideration
group
distinctively
ders the collective
of offenses
worse than the
group
present.”
of offenses would be were that circumstance not
(1992).
482,
290,
People Leung, Cal.App.4th.
Cal.Rptr.2d
5
7
303
Indeed, there are some cases that are so extreme and so extraor
dinary
guidelines may
that deviation from the
be warranted.
Louis,
647,
1239;
Yarbough, supra,
Although principle resonates most eases that (e.g., a double intentionally targets multiple victims perpetrator here, which, robbery), applies it to cases in as murder or also it multiple harm victims but does not intend to defendant multiple in that her reckless conduct will result foreseeable his or him argued punishing that for both victims. Defendant has unjustly punishment on the misfortune he deaths bases his multiple in an accident with victims. happened to be involved Appeals cogently explained the of District Columbia Court fallacy argument: in defendant’s tragedy in which occurred was
That conduct would have resulted appellant’s combination of an undue not fortuitous was almost inevitable. The but, unhappily, mishandling ingestion causes awesome of alcohol and the resultant automobiles carnage highways could In fairness it can be said that appellant on our daily. injury in to result have chosen a means which would have been more likely hardly to many persons. (D.C.1976).] States, United 358 A.2d 321-22 [Murray ease, driving present especially In it was foreseeable defen- multiple in victims because while intoxicated would result in passengers dant had two his vehicle. that, in order light foregoing principles, of the we hold Yarbough in homicide sentencing under vehicular
to facilitate cases, weight and great is entitled to multiple-victims factor consecu ordinarily imposition in the of at least two should result injuries bodily have when deaths or serious tive terms upon multiple Kromp inflicted victims the defendant. been hold, 347-48, 359, supra, (affirming 162 N.J. at A.2d 640 single consecutive sentences of drunk driver who caused accident Serrone, victims); 23, 27-28, resulting multiple State v. (1983) (suggesting multiple-victims espe 468 A .2d1050 sentences). cially supports imposition of consecutivе The fact that imprisonment ordinarily im two consecutive terms of should be posed multiple-victims prevent cases does not setting court from term of each base sentence below the provided precisely maximum the Code. That is what occurred here.
D. Finally, we whether it address was abuse of the trial impose Appellate court’s discretion to consecutive sentences. The *15 discretion, Division concluded that the trial court abused its and imposition remanded for the of concurrent sentences. We dis agree.
“Although appellate
possess original jurisdiction
courts
sentencing,
jurisdiction
over
the exercise of that
‘should not occur
regularly
routinely;
sentence,
or
in the facе of a deficient
resentencing
strongly
remand to the trial court for
to be
”
355,
preferred.’ Kromphold supra,
431 in alcohol-related automobile multiple deaths who caused fendant 123, 128, Pindale, A.2d N.J.Super. 652 accident); v. 279 with State who of defendant sentences (approving consecutive (App.Div.) 237 accident), automobile multiple alcohol-related deaths caused (1995). Regardless, we denied, 449, A.2d 142 N.J. certif. matter, impose appropriate to that, it is general aas are convinced they are drive while who on defendants multiple deaths result cause accidents drunk and Although injuries. personal sustaining serious persons case, we in this support a more lenient sentence the record could find was “so wide judgment the trial court that the do Peace, by this Cоurt.” State require modification its mark as (1973). 305 A.2d III. and rein Appellate Division judgment of We reverse guidelines original Under sentence. trial court’s state the 1239, 627, 498 A.2d Yarbough, supra, 100 N.J. established 559, Division Appellate Jarbath, 555 A.2d supra, 114 N.J. original its and exercised the sentences not have vacated should sentencing jurisdiction.
LONG, J., dissenting. because 1995 occurred December tragic events of while Carey his automobile year Joseph drove twenty-two old of that icy As a result alcohol on an road. influence of under the *16 injuries occurred. serious act, and two other lives were lost two concomitantly Carey’s punishment is Joseph Society’s interest My punishment. for with the need quarrel I no great. have the I view as from what majority stems with the difference justify consecu- to in an effort it constructed rule of law mistaken warranted have not otherwise on facts that would tive them.
I
627, 643-44,
Yarbough,
In
v.
State
II justification Even if there were some giving preeminent for Yarbough factors, status to one of the it would not be the one by sure, majority. chosen To be as the cases cited reveal, Court upheld sentences have been in eases involving However, multiple victims. to cite those eases for that says Indeed, rule of law too separate little. it is acts of violence that is the running common thread through the eases cited majority support as multiple-victims for the presumption. State
433
409, 426-27,
J.G.,
(uphold
(App.Div.)
A .2d232
Super.
261
619
N.J.
finding
factor
ing imposition
consecutive sentences based on
of
of
3(c)(“erimes
3(b)
violence”),
(“separate
of
were commit
acts
3(d) (“crimes
times”),
multiple
involved
ted at
and factor
different
denied,
436,
(1993);
victims”)),
A.2d 1142
State
133 N.J.
627
certif.
Russo,
383, 413,
N.J.Super.
(App.Div.1990)
[Ibid.] caselaw, prior Leung’s Like our multiple focus is the of confluence multiple lynchpin acts and victims of a as the consecutive sentenc- short, ing analysis. authority support is no there the majority’s that, alone, standing multiple determination victims warrant consecutive sentences. authority that there effectively reason is no for what is presumption
Court’s in in favor of consecutive a case like that it in of our understanding this is flies the face common of culpability Yarbough scale in human affairs. The factors greatest underscore that emphasis deciding themselves in concurrently consecutively whether a sentence is to be served is wrongful separateness on the way, of the acts. Put another our jurisprudence society reveals that we generally place separate as wrongful higher culpability single acts on the scale than a act with multiple consequenсes. ordinary Any recognize citizen would plainly majority former as worse than latter. Yet the leaves perpetrator separate issue of consecutive for the court, acts of violence the discretion of the trial contemplated as by Yarbough, virtually but compels consecutive sentences multi- ple-victims regardless wrongful By cases of the nature of the act. suggest consecutive sentences should be I opinion, this do resulting single act where a defendant commits interdicted only not be such an outcome should multiple consequences, compelled.
III majority’s general ap- plausibility of the granting the Even (which argument), its only purpose of this proach I do for Yarbough as a of the numerous-convictions invocation circum- makeweight unsupportable. for In these its conclusion stances, effectively Yarbough two factors creates invocation have no Plainly, the numerous convictions here out of one. wholly victims. vitality but derivative independent are Moreover, majority’s mitigating of the factors assessment *19 counterweight Yarbough considered as allows be or concur- determining sentences are be consecutive whether properly Appellate As the Division rent belied the record. is observed, he Carey’s abuse evaluation underscores substance acknowledgment or requiring problem not have an alcohol does Further, prior likely his thus not to reoffend. remediation and is at account all. law-abiding productivity life were not taken into and majority aspects of the most troublesome That is one an candidate for consecutive opinion. Carey appropriate If rule, sentences, per I majority’s of a se see despite the disavowal any on imposition of a concurrent term possibility for the little than one an act that harms more defendant who commits other person. case to an- majority chose this understandable that the
It is multiple-victims in a presumption of consecutive terms nounce the reviewed, record, fairly presumption, Without case. justified likely have such outcome. would
IV reasons, I would affirm decision foregoing For the Appellate Division. joins ZAZZALI opinion.
Justice this For reversal Justice reinstatement —Chief PORITZ STEIN, COLEMAN, VERNIERO, Justices and LaVECCHIA— 5.
For LONG and ZAZZALI —2. affirmance —Justices JERSEY, PLAINTIFF-RESPONDENT,
STATE OF NEW MOLINA, v. SAUL DEFENDANT-APPELLANT. Argued July 9, March 2001 Decided 2001.