NJ CRIMINAL CASE - FRIEDMAN
State v. Friedman
--- A.3d ----, 2012 WL 178254
N.J.,2012.
Background: Defendant
pled guilty in the Superior Court, Law Division, Camden County, to
three counts of second-degree aggravated assault. Defendant
appealed. The Superior Court, Appellate Division, 413
N.J.Super. 480, 996 A.2d 457, reversed.
State filed petition for certification.
Holdings: The
Supreme Court, Wefing,
J., Temporarily Assigned, held that:
(1) defendant
had to serve periods of parole supervision consecutively, not
concurrently;
(2) trial
court did not abuse its sentencing discretion in imposing three
consecutive sentences for defendant's three separate assaults upon
his wife;
(3) trial
court's description of defendant and reference to defendant's wife
did not hint at religious bias or serve as basis for concluding that
sentencing proceeding was in any way tainted; and
(4) defendant's
sentences were not excessive.
Opinion of Appellate Divison reversed; sentence reinstated.
Judge WEFING (temporarily
assigned) delivered the opinion of the Court.
*1 In
this appeal we are called upon to consider whether the Appellate
Division correctly applied the No Early Release Act, N.J
.S.A. 2C:43–7.2 (NERA),
when it concluded that a defendant who has been sentenced to three
consecutive terms under that statute serves the periods of
post-release parole supervision that are part of a NERA sentence
concurrently rather than consecutively. We conclude that the periods
of parole supervision must be served consecutively and thus reverse
the contrary determination of the Appellate Division.
We
are also called upon to consider in conjunction with this appeal
whether State
v. Hess, 207 N.J. 123
(2011),
mandates that we strike down a provision of defendant's plea
bargain, under which he agreed his attorney would not seek at the
time of sentencing to have the trial court impose a concurrent
sentence, as opposed to the consecutive sentence to which he had
agreed. After carefully reviewing the record in this matter, we can
perceive no basis to intervene in defendant's sentence.
I.
These questions come to us in the following factual and procedural
context. Defendant was married to his wife for more than twenty
years. Together, they had three children. The record before us does
not indicate anything untoward between defendant and his wife for
most of those years. For reasons that cannot be fathomed, and are
indeed immaterial, defendant began to abuse his wife physically. She
had to seek medical attention and on several occasions had to be
hospitalized to treat the injuries she received at his hand. Despite
the pleas of the physician who treated her for her injuries, she
resisted seeking legal recourse. She persisted in this course for an
extended period of time. Eventually, however, she acceded to these
entreaties and defendant was arrested and charged for his assaults
upon her. A grand jury originally returned an indictment against him
that contained more than one hundred counts, alleging offenses
against defendant's wife and two of his children for the period from
September 2005 through December 2006. The indictment was later
amended, and the number of counts was reduced to fifty.
On
March 28, 2008, defendant entered a negotiated plea of guilty to
three of the fifty counts. In light of the nature of the arguments
presented to us, we deem it important to set forth, in more detail
than we otherwise might, the details of the proceedings on that
date.
The prosecutor, in placing the terms of the plea bargain upon the
record, described it in the following manner: defendant agreed to
plead guilty to Count 9, charging him with second-degree aggravated
assault upon his wife in violation of N.J.S.A. 2C:12–1(b)
during the period between June 12, 2006 and July 17, 2006, and the
State would recommend a sentence not to exceed six years, subject to
NERA; to Count 13, charging him with second-degree aggravated
assault upon his wife in violation of N.J.S.A. 2C:12–1(b)
during the period between September 29, 2006 and October 3, 2006,
and the State would recommend a sentence not to exceed seven years,
subject to NERA, to be served consecutively to the sentence to be
imposed under Count 9; and to Count 22, charging him with
second-degree aggravated assault upon his wife in violation of N.J.S.A. 2C:12–1(b)
during the period between December 11, 2006 and December 14, 2006,
and the State would recommend a sentence not to exceed seven years,
subject to NERA, to be served consecutively to the sentences to be
imposed under Counts 9 and 13. The State agreed as part of the
bargain that the remaining forty-seven counts of the indictment
would be dismissed. The assistant prosecutor handling the
prosecution also noted that the agreement reached included the
following provision:
*2 He
[defendant] also agrees to waive any claim—including any claim under
State -vsYarbough regarding [the] consecutive nature of the sentence
for these counts. In other words, he agrees that he can't argue or
will not argue that those sentences could not be imposed
consecutively.
The assistant prosecutor also noted
that defendant agreed to acknowledge the accuracy of the records
maintained by the physician who treated his wife for the injuries
she received from him. Defendant's counsel acknowledged that the
assistant prosecutor had correctly recited the terms of the plea
bargain.
Defendant was then placed under oath, and the trial court carefully
questioned him about his understanding of, and his concurrence with,
the terms of the agreement. The trial court then questioned
defendant with respect to his guilty plea to Count 9.
Q.
Now, I draw your attention back to June 12, 2006 through the time
period of 7/17, July 17 of 2006. Between those dates did you burn
your wife's arm with hot oven racks from a toaster oven?
A.
Yes.
Q.
And you did realize on that date that due to previous injuries that
had been inflicted to that same area that you knew or had reason to
believe it was going to cause serious permanent injury?
A.
Yes.
Q.
And what I mean by serious permanent injury as defined by statute,
that you knew it was going to cause serious permanent disfigurement,
correct?
A.
Yes.
Q.
And as a result of those burns, your wife had to be hospitalized for
severe and life-threatening infection?
A.
Yes.
The trial court then took up
defendant's plea of guilty to Count 13.
Q.
All right. Now, under Count 13. Count 13 alleges that between 29th
day of September, 2006 and October 3, 2006 you committed another
aggravated assault of the second-degree ..., when you attempted to
cause serious bodily injury to [your wife] or caused serious bodily
injury purposely or knowingly or under circumstances manifesting
extreme indifference to the value of human life caused such serious
bodily injury. Again, another second-degree crime that could carry
the maximum ten years 85 percent without the benefit of this plea
agreement.
Do
you understand that charge?
A.
Yes.
Q.
Guilty or not guilty?
A.
Guilty.
Q.
Now, between those dates, September 29th of 2006 and October 3 of
2006, did you again burn your wife's arm with the hot oven racks
from the toaster oven?
A.
Yes.
Q.
Same arm you burned on the prior occasion?
A.
Yes.
Q.
At that point your wife had to be hospitalized for skin graft to her
arm. Is that correct?
A.
Yes.
Q.
You're aware that that area never healed properly. Am I correct?
A.
Yes.
Q.
And that she, in fact, has serious permanent disfigurement to that
arm?
A.
Yes.
The trial court then turned to Count
22.
Q.
And then, finally, Count 22 alleges that between the dates of
December 11, 2006 and December 14th of 2006 ... in Camden County,
you attempted to cause serious bodily injury to your wife ... or
caused such serious bodily injury purposely or knowingly or under
circumstances manifesting extreme indifference to the value of human
life recklessly caused serious bodily injury.
*3 Do
you understand that charge?
A.
Yes.
Q.
Guilty or not guilty?
A.
Guilty.
Q.
Again, I draw your attention back to December 10th of 2006 through—
[ASSISTANT PROSECUTOR]: I believe it's the 11th.
THE COURT: I'm sorry.
Q.
December 11th. Between the dates of December 11, 2006 and December
14th of 2006, did you burn your wife's thigh with hot oven racks
from a toaster oven?
A.
Yes.
Q.
Due to previous burns that had been occasioned to that particular
area of her thigh you knew it was going to cause permanent
disfigurement to her leg?
A.
Yes.
Q.
As a result of those burns inflicted between those dates, December
11th of 2006 and December 14th of 2006, your wife had to be
hospitalized again for life-threatening injury?
A.
Yes.
Q.
Correct?
A.
Yes.
In response to further questions
from the trial court, defendant specifically acknowledged the
accuracy of his wife's medical records and that he was responsible
for his wife's injuries recounted in those records.
The trial court reviewed for defendant the terms of the sentence
recommendations the State had agreed to make, as well as the
potential sentencing consequences for defendant if he had proceeded
to trial and been convicted on all counts. The trial court confirmed
that defendant understood that if he were convicted at trial of all
these charges, his sentencing exposure was “well beyond the 20 years
which would be the maximum [defendant] could receive under the terms
of this plea bargain.” It thus indicated that although such a
sentence was likely illegal, theoretically, defendant could have
received a sentence in excess of five hundred years, with nearly
four hundred years of parole ineligibility. Defendant assured the
trial court that he understood that.
The trial court then reviewed with defendant the manner in which the
prosecutor's sentencing recommendation was structured, noting with
respect to each component that it carried a three-year period of
parole supervision following his ultimate release from
incarceration. The trial court also explained to defendant the
consequences if he were to violate the terms of his parole
supervision.
In
response to a question from defendant, the trial court also
explained that by virtue of defendant receiving consecutive
sentences, he would also serve consecutive periods of parole
supervision. Defendant acknowledged his understanding. The trial
court had the following colloquy with defendant:
Q.
Now, in addition to that you understand that these sentences will be
consecutive and you waive any claim to object to these three
consecutive sentences under State -vsYarbough as well as other cases
that have talked about consecutive sentences.
Your lawyer explained all that. Am I correct?
A.
Yes.
Q.
You understood it all?
A.
Yes.
Additionally, the trial court reviewed in detail with defendant the
various rights that he was surrendering by pleading guilty. In
response to the trial court's questions, defendant assured the trial
court that no one had pressured him to plead guilty or promised him
anything beyond what the trial court had reviewed with him and that
he was satisfied with the services his attorney had provided him.
*4 The
trial court also reviewed for defendant what would take place when
he returned to the court for sentencing.
Q.
Sentencing date would be May 30th. On that date, as you know, you
have a range. The cap is 20 years, 15 to 20 years, 85 percent
without parole. I'll make the determination on that day what your
sentence is. I do that as a result of a full hearing which takes
place. In that full hearing the prosecutor will be here and your
attorney will be here. Certainly you'll be here. And I'll review
letters that have been submitted on behalf of yourself, on behalf of
the State which would include sentencing memoranda. Those normally
contain arguments.
I'll hear from the State and any victims of this particular crime,
your wife included, and any other indirect victims that may be
involved in this. Also, I'll hear from your attorney and I'll hear
from you on the date of sentencing and I'll make a determination on
that date taking into consideration what's been said at that date,
full history of the case as I know it to be, reach a determination
on what the interest of justice dictates to be a fair sentence.
Do
you understand that?
A.
Yes.
Q.
Now, I do have a right on that date to reject this plea agreement if
I don't believe it's just. For example, if I thought it was too
lenient, I can just say no, I'm not going to accept this plea
agreement. But if I did that, you'd have a right to take back your
three guilty pleas that you've entered today and nothing you told me
about what happened between yourself and your wife on those dates we
talked about could later on be used against you at trial to prove
you committed any crimes contained in this entire indictment.
At the conclusion of the plea
proceedings, the trial court made the following findings.
THE COURT: Mr. Friedman, I do make findings that you have, in fact,
retracted your not guilty plea and entered guilty pleas to Counts 9,
13 and 22. You have given me factuals that are consistent with those
guilty pleas, consistent that you knowingly and purposely caused
serious bodily injury to your wife. S–1, S–2 are indicative of
injuries that caused significant and serious permanent
disfigurement, so they meet the test of serious injury that's
required under these counts of the indictment. So the factual is
consistent with your guilty pleas.
I
also find that you've entered these guilty pleas and accepted the
offer that the State has extended. You've done this freely,
knowingly and voluntarily; not as a result of any outside influences
that would affect your ability to think or reason or understand the
nature and consequences of your acts.
I
make this determination based upon several items: Your attorney's
representation to the Court, your completion of the plea forms, your
acknowledgment of the answers to the plea forms being accurate and
correct as evidenced by your signature, your incorporation by
reference of the answers to the plea forms by representations to
this Court.
*5 And,
very important, your demeanor before the Court. You've engaged the
Court in discussions. Where you've had questions, you've asked those
questions. You did involve intricately, I know, from representations
of counsel in the negotiation process and accepting responsibility
for what you did on those various dates.
And having made those findings, I will accept this guilty plea,
enter a finding of guilty and revoke your bail.
Prior to sentencing, defendant's attorney prepared and submitted a
sentencing memorandum. Attached to that sentencing memorandum were a
number of letters written on defendant's behalf, all requesting
leniency for him. Within that memorandum, defendant's attorney
reviewed the statutory aggravating and mitigating factors, N.J.S.A. 2C:44–1(a)
and (b), and contended that the mitigating factors predominated.
This, he urged the trial court, warranted imposing a sentence at the
lowest range for a second-degree conviction. He stressed that
defendant had only one prior conviction, for the disorderly persons
offense of shoplifting; that the couple had been experiencing the
stress of financial pressures; and that their marital discord was
accentuated by disagreements as to where they should reside, leading
defendant to fear abandonment. Defendant's behavior, he argued, was
aberrational and the product of the circumstances in which he found
himself at the time and therefore unlikely to recur. Defendant's
attorney also argued in his sentencing memorandum that the period of
parole supervision required by NERA should be served concurrently,
rather than consecutively. At sentencing, defendant's attorney
stressed those same arguments in his oral presentation on behalf of
his client, noting also that defendant was fifty-one years old, and
the couple had been married for nearly twenty-five years before the
physical abuse commenced.
At
the sentencing proceeding, the trial court heard from the State and
defendant's attorney, as well as defendant's wife and defendant
himself. Defendant expressed remorse for his actions and also asked
for a sentence at the lower part of the range. The trial court also
considered a statement submitted by one of defendant's daughters
that recited the psychological dysfunction that had marked the
family dynamics
The trial court then proceeded to analyze the legal arguments the
attorneys had presented, addressing each of the aggravating and
mitigating factors upon which the attorneys had relied, and it set
forth its reasons for concluding that the sentence recommended when
the parties placed their plea bargain on the record was the
appropriate sentence for this defendant. In the course of its
sentencing analysis, the trial court, after noting that defendant
had stipulated as part of his plea bargain that his sentences were
to be served consecutively, analyzed the conduct to which defendant
had pled guilty. It noted that he had pled guilty to three separate
acts of violence against his wife that occurred at separate times.
The trial court noted the principles enunciated in State
v. Yarbough, 100 N.J. 627,
498 A.2d 1239 (1985), cert.
denied, 475 U.S. 1014,
106 S.Ct. 1193, 89 L. Ed.2d 308 (1986),
and concluded that regardless of defendant's stipulation,
consecutive sentences were entirely appropriate.
*6 It
also paused at one point in the course of its detailed analysis to
note what the court described as the “fine advocacy” of defendant's
attorney and that, in the court's view, defendant should be grateful
to his attorney.
He
was tenacious in his representation, honest and open in his
representation, and that's why you're standing in the position you
are today with an exposure of only 20 years in state prison, because
we all know—we did the numbers-you were looking at multiple life
sentences if we took the numbers and added them up.
The trial court ultimately imposed the sentence recommended by the
State at the time defendant entered his guilty plea. As part of the
sentence, the trial court directed that defendant's periods of
parole supervision be served consecutively.
Defendant thereafter appealed his sentence, and the matter was heard
on the Appellate Division's calendar devoted to sentence matters. R. 2:9–11.
Defendant's attorney presented several arguments to the Appellate
Division: the sentencing court used inflammatory language that
demonstrated it was not neutral and, thus, defendant was entitled to
be resentenced before another court; the terms of the plea bargain
that barred defendant from arguing in favor of concurrent terms were
improper; and the sentence was excessive. Defendant's attorney made
clear, however, that defendant was not seeking to have the plea
bargain set aside. The Appellate Division rejected defendant's
contentions in an order entered December 29, 2009. In the order, the
panel noted that defendant did not challenge the imposition of
consecutive periods of parole supervision, and thus it declined to
address the question.
Upon receipt of the order, defendant moved for reconsideration,
seeking the opportunity to address that question. The Appellate
Division granted defendant's motion and set a briefing schedule.
After argument, the Appellate Division ruled that defendant's
periods of parole supervision pursuant to N.J.S.A. 2C:43–7.2 must
be served concurrently even though defendant was sentenced to serve
consecutive NERA terms of imprisonment. State
v. Friedman, 413 N.J.Super. 480,
491, 996 A.2d 457 (App.Div.2010).
The panel relied upon the language of the statute, which specifies
that “ ‘the term of parole supervision [of an inmate serving a NERA
sentence] shall commence immediately upon his release from
incarceration.’ “ Id. at
487, 996 A.2d 457 (quoting N.J.S.A. 2C:43–7.2(c)).
The panel reasoned that if the periods of parole supervision were
imposed consecutively, the second and third parole terms would not
start “immediately upon his release” from prison. Id. at
491, 996 A.2d 457.
Therefore, the panel concluded that by the language of the statute,
the parole terms must be concurrent. Ibid. Thereafter, the
State petitioned and defendant cross-petitioned for certification.
We granted both petitions. 204 N.J. 39
(2010).
II.
On
appeal, the State argues that the imposition of consecutive
sentences under N.J.S.A. 2C:43–7.2 requires
that the parole supervision periods that are a concomitant of a NERA
sentence also run consecutively. It presents three reasons in
support of its position.
*7 First,
it asserts that the result reached by the Appellate Division runs
afoul of the legal principle that sentences cannot be both
consecutive and concurrent but, rather, must be wholly one or the
other. According to the State, the Appellate Division erred when it
concluded that this principle is inapplicable to periods of parole
supervision. The State also maintains that the imposition of
concurrent periods of parole supervision with consecutive periods of
incarceration is inconsistent with sentencing procedures applied
under statutes other than NERA. According to the State, there is no
legislative indication that NERA sentences should operate in a
different fashion. The third reason put forth by the State rests
upon the Legislature's intent when it enacted NERA. It stresses that
the primary goal of the Legislature was to assure the longest period
of incarceration possible for violent offenders. According to the
State, it would be inconsistent with this legislative goal to
construe the statute in a way as to result in a lesser period of
parole supervision.
Defendant's response to the arguments put forth by the State rests
upon the statutory phrase “immediately upon release.” He asserts
that this language requires that NERA periods of parole supervision
must all commence upon an offender's release from incarceration and,
therefore, must run concurrently.
In
his cross-petition, defendant presents five additional contentions.
First, he argues that the plea agreement unduly constricted his
attorney by precluding him from arguing in favor of a concurrent
sentence, thus denying him effective assistance from his attorney at
a critical juncture. Second, he contends that the trial court did
not conduct an adequate analysis under State v. Yarbough, supra, when
it directed that his sentences be served consecutively. Defendant's
third assertion is that the trial court's language during the course
of the sentencing proceeding indicated that the trial court did not
view him in a neutral manner but, rather, let its sentencing views
be influenced by defendant's religious identity. Defendant's fourth
contention is that the trial court, in imposing its sentence, sought
to punish defendant for more than the three counts of the indictment
to which defendant pled guilty. Finally, defendant asserts that his
sentence is manifestly excessive and the trial court did not give
sufficient weight to the applicable mitigating factors.
The State counters defendant's arguments. It rejects his contention
that the provision of the plea agreement under which defendant
agreed that his attorney would not seek concurrent sentences
deprived him of effective assistance from his attorney. The State
asserts the provision was entirely appropriate. It stresses that the
plea bargain was no more than a sentence recommendation that in no
way bound the sentencing court. It analyzes the language upon which
defendant rests his contention of bias on the part of the sentencing
court and argues it is not reflective of bias but, rather, the trial
court's understandably strong reaction to the conduct which
defendant admitted committing. It asserts that defendant's sentence,
an aggregate twenty years subject to the terms of NERA, was
appropriate and the trial court's sentencing calculus was entirely
correct.
III.
*8 We
turn first to the question of whether an individual sentenced to
consecutive periods of incarceration under NERA must serve the
accompanying periods of parole supervision consecutively as well, or
whether they are to be served concurrently.
N.J.S.A. 2C:43–7.2 contains
four subsections. Subsection (a) mandates that a court imposing a
sentence under NERA “shall fix a minimum term of 85% of the sentence
imposed, during which the defendant shall not be eligible for
parole.” Subsection (b) sets forth the methodology for calculating
an individual's parole eligibility date and subsection (d) lists the
offenses for which a trial court must impose NERA's terms upon an
individual's conviction. Included among those offenses is N.J.S.A. 2C:12–1(b),
the crime to which defendant entered three successive pleas of
guilty.
Subsection (c) deals with parole supervision for an individual
sentenced under NERA. This provision, the Appellate Division noted
in State
v. Freudenberger, 358 N.J.Super. 162,
168, 817 A.2d 371 (App.Div.2003),
is “unique and radically different” from the general parole
statute, N.J.S.A. 30:4–123.45 to
.95. Subsection (c) of N.J.S.A. 2C:43–7.2 states
in pertinent part:
Notwithstanding any other provision of law to the contrary and in
addition to any other sentence imposed, a court imposing a minimum
period of parole ineligibility of 85 percent of the sentence
pursuant to this section shall also impose ... a three-year term of
parole supervision if the defendant is being sentenced for a crime
of the second degree. The term of parole supervision shall commence
upon the completion of the sentence of incarceration imposed by the
court pursuant to subsection a. of this section unless the defendant
is serving a sentence of incarceration for another crime at the time
he completes the sentence of incarceration imposed pursuant to
subsection a., in which case the term of parole supervision shall
commence immediately upon the defendant's release from
incarceration. During the term of parole supervision the defendant
shall remain ... in the legal custody of the Commissioner of the
Department of Corrections....
The consequence of this language is
that an individual who is under parole supervision after having
served 85% of his or her specified sentence in custody and then
violates a condition of that parole may be returned to custody not
only for the balance of the original custodial term, but for the
remaining length of the parole supervisory period.
Where [NERA] applies, it changes sentencing drastically. The
required incarceration of 85% of the sentence during which the
defendant is not eligible for parole will almost always be far
longer than any minimum sentence set by the court. As a result, the
maximum sentence becomes far more significant than the minimum for
all purposes. That is entirely different from other sentences where
it is the minimum that is the key factor in controlling the length
of incarceration. In addition, 85% of the maximum sentence imposed
usually will be more than the sentence reduced by credits. Thus, the
whole sentence that was imposed, as reduced by credits, will have
been served by the time the person is released under NERA. For that
reason, subsection c. sets an additional parole time period for a
person who is subject to this section. During this period, the
person is subject to parole supervision; if a violation of parole
conditions occurs, the parolee can be re-incarcerated for the
balance of the parole term.
*9 [Cannel, New
Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:43–7.2
(2011).]
The statute does not provide a specific directive as to whether
periods of NERA parole supervision must be concurrent or consecutive
for an offender who has been sentenced to consecutive custodial
terms under NERA. We must therefore consider the language of the
statute and the intent of the Legislature in light of settled
principles of statutory interpretation.
[1]  [2] [3] [4] [5] Our
role in interpreting a statute “is to determine and effectuate the
Legislature's intent.” Bosland
v. Warnock Dodge, Inc., 197 N.J. 543,
553, 964 A.2d 741 (2009) (citing D'Annunzio
v. Prudential Ins. Co. of Am., 192 N.J. 110,
119, 927 A.2d 113 (2007)).
We “ ‘look first to the plain language of the statute, seeking
further guidance only to the extent that the Legislature's intent
cannot be derived from the words that it has chosen.’ “ Ibid. (quoting Pizzullo
v. N.J. Mfrs. Ins. Co., 196 N.J.251,
264, 952 A.2d 1077 (2008)).
We must, however, read the statute as a whole and not seize upon one
or two words as a fixed guide to the meaning of the entirety. Singh
v. Sidana, 387 N.J.Super. 380,
386 n. 2, 904 A.2d 721 (App.Div.2006), certif.
denied,189 N.J. 428,
915 A.2d 1051 (2007) (“
‘There is no more likely way to misapprehend the meaning of
language—be it in a constitution, a statute, a will or a
contract-than to read the words literally, forgetting the object
which the document as a whole is meant to secure.’ ”) (quoting Central
Hanover Bank & Trust Co. v. Commissioner, 159 F.2d
167, 169 (2d Cir.), cert.
denied, 331 U.S.836,
67 S.Ct. 1518, 91 L.Ed. 1848 (1947))).
“ ‘[S]tatutes are to be read sensibly rather than literally....” Mayfield
v. Cmty Med. Assocs., P.A., 335 N.J.Super. 198,
205, 762 A.2d 237 (App.Div.2000) (quoting DeLisa
v. County of Bergen, 165 N.J. 140,
147, 755A.2d 578 (2000)).
Courts thus do not slavishly limit themselves to the dry words of
legislation nor rely on mere abstract logic to determine what
interpretation of a statute would fulfill the Legislature's purpose.
More is called for than a merely mechanical analysis. Machines can
perform mechanical tasks, but judgment is necessary to reach a
result informed by intelligence.
[ Ibid.]
[6] A
court interpreting a statute must balance its fundamental duty not
to substitute its views for those expressed by the Legislature in
the language the Legislature selected in enacting a statute, State
v. Baker, 198 N.J. 189,
193, 966 A.2d 488 (2009)(“We
remain ever mindful that, ‘when interpreting a statute, our
overarching duty is to construe and apply the statute as enacted,’ “
(quoting Daidone,
supra, 191 N.J. at
565, 924 A.2d 1193))
with the recognition that a literal reading of the words of a
statute may not yield the Legislature's intended result. Quest
Diagnostics, Inc. v. Director, Div. of Taxation, 387 N.J.Super. 104,
111, 903A.2d 442 (App.Div.), certif.
denied, 188 N.J. 577,
911 A.2d 69 (2006).
[7] “
‘When all is said and done, the matter of statutory construction ...
will not justly turn on literalisms, technisms, or the so-called
formal rules of interpretation; it will justly turn on the breadth
of the objectives of the legislation and the commonsense of the
situation.’ “ LaFage
v. Jani, 166 N.J. 412, 431, 766 A.2d 1066 (2001) (alteration
in original) (quoting Jersey
City Chapter Prop. Owners' Protective Assoc. v. City Counsel of
Jersey City, 55 N.J. 86,
100, 259 A.2d 698 (1969).
*10 [8] [9] In
attempting to determine the objects the Legislature had in mind in
enacting a statute, it is appropriate to examine the legislative
history of the bill for whatever light it may shed upon that
intent. Warren
County Bar Ass'n. v. Bd. of Chosen Freeholders, 386 N.J.Super. 194,
200, 899 A.2d 1028 (App.Div.), certif.
denied, 188 N.J. 354,
907 A.2d 1014 (2006).
While legislative history is most usually examined if a court is
satisfied that the statutory language is ambiguous, Thomsen
v. Mercer–Charles, 187 N.J. 197,
206, 901 A.2d 303 (2006),
it is appropriate to look to the legislative history as a tool to
measure which construction of a statute's words will result in
achieving the goals the Legislature was striving to reach by
enacting the statute.
We
have examined the legislative history of N.J.S.A. 2C:43–7.2,
and it contains no direct statements with respect to the precise
question before us. The Statement of the Senate Law and Public
Safety Committee of April 24, 1996, however, clearly posits the
Legislature's intention in enacting the bill as being “to increase
prison time for offenders committing the most serious crimes in
society.” S. Law & Pub. Safety Comm., Statement to S. No. 855
(Apr. 24, 1996).
In
its original formulation, the bill made no provision for parole
supervision of an inmate who completed the specified 85% of his or
her sentence. Concerns about this were raised before the Senate Law
and Public Safety Committee in the hearing it conducted on April 24,
1996. Further, the Study Commission on Parole appointed by
then-Governor Whitman also noted that NERA, as then drafted, was
silent with respect to any post-release supervision of an inmate
upon completion of a NERA sentence. According to the Commission's
report issued in December 1996,
[m]ost
inmates sentenced under the 85 percent requirement would be
automatically released (i.e., “max out”) on or shortly after the
completion of the minimum fixed term of parole ineligibility
prescribed by statute. The Parole Board would have neither the
opportunity nor the authority to deny parole based on a prediction
of future criminal behavior, the inmate's unwillingness to
participate in treatment, or deficiencies in the inmate's parole
plan. His or her release would be dictated by operation of law
rather than by a discretionary decision of the Parole Board.
[ Report
of the Study Commission on Parole, 10–11 (1996).]
The Commission also expressed its concern that the fifteen percent
that remained of the original custodial term following the release
of an inmate sentenced pursuant to NERA might not be an adequate
deterrent to prevent the offender from returning to violent crime.
It thus stressed the need for post-release monitoring and
supervision. Id. at
14, 901 A.2d 303.
[10] After
this potential problem was recognized, the bill was amended to
provide for mandatory fixed periods of parole supervision for NERA
offenders. In our judgment, it is more consonant with the
Legislature's objective—to protect the public from the risk posed by
the release of violent offenders from incarceration—to have NERA
periods of parole supervision run consecutively in the case of an
individual who is sentenced to consecutive NERA sentences, rather
than to have the periods of parole supervision run concurrently. We
thus reject defendant's argument that the Legislature's use of the
word “immediately” calls for concurrent service of periods of parole
supervision for inmates who have served consecutive NERA sentences.
Such a construction would not advance the Legislature's ultimate
objectives underlying the passage of NERA.
*11 Our
view that such a construction is not in accord with the overall
intent of the Legislature in its enactment of NERA is fortified by
the language it selected when it incorporated mandatory parole
supervision into the statute. Subsection (c) directs that a court
imposing a sentence under NERA “shall also impose” the specified
parole supervision period. N.J.S.A. 2C:43–7.2(c).
Thus, a three-year period of parole supervision is an integral part
of a NERA sentence for the second-degree crime of aggravated
assault.See State
v. Cheung, 328 N.J.Super. 368,
371, 746 A.2d 38 (App.Div.2000) (noting
that the five-year period of parole supervision specified under NERA
for a first-degree crime is mandatory, regardless of whether the
matter is downgraded for sentencing underN.J.S.A. 2C:44–1(f)(2)).
If an individual were to serve concurrent periods of parole
supervision after completing consecutive custodial NERA terms, the
individual would not serve the full NERA sentence, but only a
portion of it. Accordingly, defendant, upon his release from
incarceration, must serve his periods of parole supervision
consecutively, not concurrently.
IV.
A.
[11] We
turn now to defendant's cross-petition, in which he asserts that
that portion of his plea bargain under which he agreed that his
attorney would not argue at sentencing that the court should impose
concurrent sentences, is unenforceable. InState v. Hess, supra, decided
after this defendant pled guilty and was sentenced, we held that a
defendant who acknowledged as part of her plea bargain that she
would receive a sentence of thirty years in prison, with a
twenty-five and one-half year period of parole ineligibility,
further acknowledged that the aggravating factors outweighed the
mitigating factors, and agreed as well that neither she nor her
attorney would seek a lesser term at sentencing, had been deprived
of the effective assistance of counsel because of restrictions in
the plea agreement placed on counsel's right to argue for a lesser
sentence. 207 N.J. at
129.
As
we noted earlier, defendant does not seek to have the entire plea
set aside. Rather, he only challenges that one aspect of the plea
bargain.
There are several factors that distinguish this matter from that
presented in Hess. We note, for instance, that defendant's
attorney submitted a full sentencing memorandum to the court in
advance of defendant being sentenced while the attorney for the
defendant in Hess told the trial court at sentencing that his
hands were “somewhat tied” by the terms of the plea bargain. Id . at
138. In particular, that attorney made no effort to advise the
sentencing court of the evidence he had obtained during the course
of representing the defendant, evidence indicating that she “was a
physically and psychologically battered woman, who had been
threatened and had feared for her life.” Ibid.
The record before us contains no indication of any similar
withholding from the trial court of information that could bear on
the court's sentencing analysis. Indeed, as we noted earlier, this
trial court at sentencing commented upon what it characterized as
the “fine advocacy” of defendant's attorney, and his “tenacious”
efforts on defendant's behalf.
*12 Further,
the information that was not disclosed to the sentencing court in Hess had
the potential to affect the weight the sentencing court might
ascribe to the relevant aggravating and mitigating factors, N.J.S.A. 2C:44–1a
and b, many of which focus on potential individual characteristics
of the individual awaiting sentencing. It is the defendant's
attorney who best knows how to apply those statutory factors to
assist the trial court in determining the appropriate quantum of the
sentence.
[12] The
focus of the sentencing court in considering whether to impose
concurrent or consecutive terms for multiple offenses is different,
however, than its focus in determining a particular sentence for a
particular offense. For the latter, the sentencing court looks
primarily to the individual defendant while for the former, it looks
at the offense. “[I]n fashioning consecutive or concurrent sentences
under the Code, sentencing courts should be guided by the Court's
paramount sentencing goals that punishment fit the crime, not the
criminal, and that there be a predictable degree of uniformity in
sentencing.” State
v. Yarbough, supra, 100 N.J. at
630, 498 A.2d 1239.
Although we have noted these distinctions, we decline to consider
whether they are of such significance that Hess does or does
not apply to this matter because there is no need for us to do so.
In Yarbough, supra, we summarized the principles that should
guide a sentencing court when it considers the issue of whether
sentences for multiple offenses should be served consecutively or
concurrently. In doing so, we stated clearly, that “there can be no
free crimes in a system for which the punishment shall fit the
crime” and directed a sentencing court to consider, among other
factors, whether “the crimes involved separate acts of violence or
threats of violence” and whether “the crimes were committed at
different times or separate places, rather than being committed so
closely in time and place as to indicate a single period of aberrant
behavior.” Id. at
643–44, 498 A.2d 1239.
Here, defendant in his plea colloquy admitted to three specific,
separate assaults upon his wife: one in the summer months of 2006,
the second in the fall of 2006, and the third in the early winter of
2006. The decision to impose three consecutive sentences for these
three completely separate events could hardly be characterized as an
abuse of the trial court's sentencing discretion.
The trial court, moreover, did not rely upon this restriction.
Rather, it recognized that the terms of a plea bargain do not
control the inherent sentencing authority of the court and engaged
in its own analysis of the principles stated in Yarbough, supra, and
came to the conclusion that the only appropriate punishment for the
separate offenses committed by this defendant was consecutive
periods of incarceration.
B.
[13] Defendant
complains of certain of the language used by the trial court in the
course of its sentencing decision. Specifically, he objects to the
court's description of him as a “domestic terrorist” and its
reference to defendant's wife as a Holocaust survivor. We can find
no hint of the religious bias that defendant asserts exists in this
language. Nor can we find any basis to conclude that the sentencing
proceeding was in any way tainted, no matter how inappropriate we
might consider these remarks.
C.
*13 [14] Defendant's
final contention is that his sentence is excessive. We reject this
out of hand. Defendant pled guilty to three second-degree crimes.
The sentencing range for crimes of the second degree is five years
to ten years. For his conviction under Count 9, defendant was
sentenced to a term of six years, one year less than the mid-point
of the sentencing range. For each of his convictions under Count 13
and Count 22, he was sentenced to seven years, the mid-point of the
sentencing range. Defendant's sentences, at or below the mid-point
of the sentencing range for the second-degree offenses to which
defendant pled guilty, are not excessive.
V.
For the reasons stated, the opinion of the Appellate Division is
reversed and defendant's original sentence is reinstated.
Chief Justice RABNER and
Justices LONG, LaVECCHIA, ALBIN, HOENS,
and PATTERSON join
in Judge WEFING's opinion.
For reversal and reinstatement—Chief
Justice RABNER and
Justices LONG, LaVECCHIA, ALBIN, HOENS, PATTERSON and WEFING(t/a)—7.
N.J.,2012.
State v. Friedman
--- A.3d ----, 2012 WL 178254 (N.J.)
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