STATE OF NEW JERSEY v. ROBERT J. WIKANDER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2866-04T32866-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT J. WIKANDER,

Defendant-Appellant.

_________________________________

 

Argued June 1, 2006 - Decided August 2, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

No. 03-12-1607.

John C. Whipple argued the cause for

appellant (Mr. Whipple, attorney, and

on the brief; Mary Gibbons Whipple, on

the brief).

Carol M. Henderson, Deputy Attorney General,

argued the cause for respondent (Zulima V.

Farber, Attorney General, attorney; Ms.

Henderson, of counsel and on the brief).

PER CURIAM

Defendant entered a negotiated plea of guilty to two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1). The trial court sentenced defendant to two consecutive terms of seven years, each subject to the eighty-five percent period of parole ineligibility imposed by the No Early Release Act, ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed, contending the trial court erred when it imposed consecutive, as opposed to concurrent, terms. After reviewing the record in light of the contentions advanced on appeal, we remand the matter to the trial court for reconsideration.

At the time defendant entered his negotiated plea of guilty, he supplied the following factual basis to the trial court:

Q. Mr. Wikander, I would like to direct your attention to May 26 of 2003. Did you have occasion to be in the Township of Lakewood?

A. Yes, I did.

Q. Prior to going to the Township of Lakewood, you were at home, correct?

A. Yes.

Q. And you had alcohol to drink; is that correct?

A. Yes, I did.

Q. And in fact you were operating your motor vehicle while in the Township of Lakewood on May 26, 2003; is that correct?

A. Yes it is.

Q. And your blood alcohol was in excess of .17; is that correct?

A. Yes.

Q. And you were intoxicated when you operated your motor vehicle; is that correct?

A. Yes.

Q. And while you operated that motor vehicle you ultimately had an accident; is that correct?

A. Yes, it was.

Q. And you struck two young children on the sidewalk; is that correct?

A. Yes, it was.

Q. And then your vehicle went forward and you were located about a half mile down the road; is that correct?

A. Yes, it was.

Q. You understand that the two young girls, they did suffer some serious injuries but they are getting somewhat better; you understand that?

A. Yes, I do.

Q. And you are entering this plea of guilty because you did have the accident, you were drinking and there was serious bodily injury that occurred; is that correct?

A. Yes, it is.

The terms of the plea bargain called for the State to recommend a sentence of seven years for each count, to be served consecutively, and defendant reserved the right to argue for a concurrent sentence.

Defendant was clearly intoxicated at the time of the accident, which occurred while he was in Lakewood to purchase cocaine. He lost control of his vehicle and drove on the sidewalk, where two young girls, ages ten and eleven were walking. They were unable to get out of the way and were seriously injured. One suffered a fractured pelvis, the other a fractured skull. A subsequent search of the vehicle uncovered beer and cocaine. Defendant was so intoxicated at the time that he has no memory of the specifics of what happened.

Defendant had no criminal record prior to this incident and no record of any alcohol-related offense. He was married, with three children, and working as a mortgage broker. Defendant is an alcoholic. From the record before us, it appears that he had been sober for the ten years prior to this incident when, for whatever reason, he resumed drinking. After this incident, defendant was also diagnosed as suffering from bi-polar disorder.

"'Offenders who are to be sentenced at one time upon multiple convictions present the just deserts sentencing system with thorny issues.'" State v. Yarbough, 100 N.J. 627, 638 (1985) (quoting Robert S. Raymar, Criminal Dispositions for New Jersey: Pretrial Intervention, the Model Penal Code, and Just Deserts, 8 Seton Hall L. Rev. 1, 55 (1976)), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). "[J]ustification for [consecutive sentences] must be consistent with the general policies of the Code and judicial sentencing guidelines." State v. Pennington, 154 N.J. 344, 361 (1998). If a trial court determines that consecutive sentences should be imposed, it must give a statement of its reasons in support of that conclusion. State v. Cook, 330 N.J. Super. 395, 423 (App. Div.), certif. denied, 165 N.J. 486 (2000). Here, in support of its decision to impose a consecutive sentence, the trial court cited only one factor, that there were two victims to this accident.

We recognize that in State v. Carey, 168 N.J. 413 (2001), and State v. Molina, 168 N.J. 436 (2001), the Supreme Court held it was not an abuse of discretion to impose consecutive sentences in criminal proceedings following alcohol-related motor vehicle incidents involving more than one victim. Those cases, however, predated the adoption of N.J.S.A. 2C:43-7.2, with its mandatory eighty-five percent period of parole ineligibility. A defendant who is sentenced to two consecutive seven-year terms, each of which is subject to NERA, will spend significantly more time incarcerated than a defendant who is sentenced to two consecutive seven-year terms with no period of parole ineligibility.

We have had occasion recently to recognize the importance of sentencing judges taking into consideration the real-time consequences of NERA in fashioning a sentence. State v. Marinez, 370 N.J. Super. 49, 58 (App. Div.) (stating, "[w]e must [] be mindful of the real-time consequences of NERA and the role that it customarily plays in the fashioning of an appropriate sentence"), certif. denied, 182 N.J. 142 (2004). Further, in State v. Berardi, we recognized that previously settled principles of sentencing must be adjusted to account for the real-time consequences of NERA. State v. Berardi, 369 N.J. Super. 445 (App. Div. 2004), certif. granted, 183 N.J. 213, appeal dismissed, 185 N.J. 250 (2005).

In our judgment, a similar approach should be adopted by a trial court confronted with the question whether to impose consecutive or concurrent sentences. We are troubled by the fact that the transcript of the sentencing proceedings does not reflect that the trial court took into consideration the dramatic effect upon defendant of two consecutive sentences with separate eighty-five percent periods of parole ineligibility. In State v. Pennington, the Court restated its commitment "to the view that '[t]he focus should be on the fairness of the overall sentence . . . .'" Pennington, supra, 154 N.J. at 361 (quoting State v. Miller, 108 N.J. 112, 122 (1987)). The passage of NERA does not warrant a retreat from that principle; rather, it is all the more critical that sentencing courts adhere to it.

The matter is remanded to the trial court for further proceedings. We do not retain jurisdiction.

 

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A-2866-04T3

August 2, 2006