STATE OF NEW JERSEY v. BRIAN MATTHEW ALVAREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN MATTHEW ALVAREZ,

Defendant-Appellant.

_________________________________

February 27, 2014

Argued October 30, 2013 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment

No. 12-04-0588.

Joseph P. Rem, Jr., argued the cause for appellant (Rem Zeller Law Group, attorneys; Mr. Rem, of counsel; Lisa R. LeBoeuf, on the brief).

Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).

PER CURIAM

Pursuant to an "open" plea agreement, defendant Brian Matthew Alvarez, a first-time offender, pled guilty to third-degree arson, N.J.S.A. 2C:17-1b, in exchange for the dismissal of the remaining charges. The judge sentenced him to three years in prison. Defendant appealed his custodial term and made an emergent motion for bail pending appeal. We denied the motion but summarily remanded for reconsideration of the sentence.

The remand was required because defendant was owed a presumption of non-imprisonment under N.J.S.A. 2C:44-1(e), which the judge did not address in either the sentencing transcript or his amplification pursuant to R. 2:5-1(b). Accordingly, we remanded to allow the judge to reconsider and state reasons for any sentence imposed pursuant to N.J.S.A. 2C:44-1e and State v. Gardner, 113 N.J. 510 (1989).

On remand, the judge imposed the same sentence, but without addressing either N.J.S.A. 2C:44-1e or Gardner. We reverse.

Defendant, a volunteer fire fighter, set fire in the middle of the night to an abandoned house owned by the township and used for police and fire training. He was twenty-three years old and had been drinking at a party earlier in the evening. When he was sixteen, he was adjudicated delinquent.

Defendant was not sentenced on the arson charge until almost two years after the crime. In the ensuing period, he had become employed as a clerk at A&P. Although defendant had been a classified student who struggled to finish high school, he was performing well at his job. He worked fifty hours a week at the store and had been selected for a program to promote him to shift supervisor. His supervisors were aware of the arson charge and had written to the court on his behalf.

Defendant had also completed two semesters at William Patterson University as a part-time student. He had recently been diagnosed as suffering from post-traumatic stress disorder (PTSD) as a result of events witnessed when serving as a junior fire fighter, and was receiving therapy for that condition and alcohol abuse at the time of sentencing. Defendant's father and uncle were fire fighters, as was his brother. Defendant had moved back in with his parents, who were supportive of his efforts to address his problems.

The judge found aggravating factors, one, three, six, and nine, N.J.S.A. 2C:44-1a(1),(3),(6),(9), and mitigating factor eleven, N.J.S.A. 2C:44-1b(11). In finding aggravating factor one, the judge noted that "arson . . . it's a specific type of offense. It's a serious offense. At the same time, it does put people at risk." The judge found that defendant "comes from a firefighting family, and was a volunteer fire fighter at the time of the act." Defendant was thus aware of the number of people imperiled by the rapid response required, including fire fighters, other drivers on the roads, those living in the vicinity of the burning building, and citizens needing assistance who might have gone unaided because of the diversion of resources elsewhere.

The judge found aggravating factor three because defendant's juvenile record and the arson charge created a risk that he would commit another offense and aggravating factor six "due to defendant's prior record." The judge explained that he found aggravating factor nine because arson "is a very serious offense," regardless of whether the structure is occupied, "that needs to be deterred." The judge found mitigating factor eleven because "defendant is youthful, and is making positive strides in getting his life together by attending school and maintaining employment." The judge further indicated his willingness to recommend ISP or the indeterminate youth program, should defendant be eligible, "so that he may continue the positive path he started."

The judge did not make any finding that defendant's imprisonment was necessary for the protection of the public under the criteria set forth in N.J.S.A. 2C:44-1a, considering the nature and circumstances of the offense and the history, character and condition of defendant. N.J.S.A. 2C:44-1e. The judge's only reference to the presumption against incarceration occurred on resentencing. The judge found that defendant's juvenile charge "weakens that presumption against incarceration," and "having four aggravating factors, [and] one mitigating factor . . . certainly [is] enough in order to overcome the presumption against incarceration."

The judge concluded his remarks on resentencing with the following:

I'm sure everyone has a different way of looking at this, a defense way of looking at it, the prosecution. I thought under these circumstances, I felt badly for a young man having to go to jail, but I feel equally sad about the fact that this man has had an opportunity to turn his life around. He's now involved with some treatment. He's now involved with employment. I understand that. But at the same time, I can't overlook [] this offense. I just can't do that.

. . . [I]t's not just a firefighter responding, it's any number of different people that have to respond. And if we're going to put people in the position of running out of their homes and running from different locations in order to try to provide assistance, I think that goes contrary to public policy.

Appellate review of a sentence involves quite specific tasks. We are first to determine whether the legislative policies, that is, the sentencing guidelines, were violated, and if there is competent credible evidence in the record for the aggravating and mitigating factors the judge identified. State v. Roth, 95 N.J. 334, 364 (1984). If the sentence passes muster after those inquiries, we must still insure that the application of the guidelines to the facts of the case does not make the sentence so clearly unreasonable as to shock the judicial conscience. Id. at 364-65. "[T]he error which warrants modification of a sentence must amount to more than a difference of opinion or individual sentencing philosophy. The sentencing objectives are spelled out in the Code. It is deviation from those objectives, in view of the standards and criteria therein set forth, which constitutes error." Id. at 365 (citations omitted).

Undertaking that inquiry here, we conclude that the judge failed to follow and apply the correct sentencing guidelines and certain of his aggravating factors lack support in the record. See State v. Jarbath, 114 N.J. 394, 401 (1989). As the Supreme Court explained in Gardner, the Legislature has determined that a first-time offender convicted of the third-degree crime of arson is entitled to a presumption against imprisonment, which "can be overcome only by a conclusion that 'his imprisonment is necessary for the protection of the public under the criteria set forth' in N.J.S.A. 2C:44-1(a), with additional reference to 'the nature and circumstances of the offense and the history, character and condition of the defendant.'" Gardner, supra, 113 N.J. at 517 (quoting N.J.S.A. 2C:44-1e).

Making the "in or out" decision for a first-time offender convicted of third-degree arson thus cannot be accomplished by the same weighing and balancing of aggravating and mitigating factors that a sentencing court employs to determine an appropriate sentence within the range specified for the degree of crime. Ibid. The Court has determined that the Legislature intended to alter that balance by requiring that the sentencing court be persuaded, by a standard higher than clear and convincing evidence, that incarceration is necessary for protection of the public. Id. at 517-18.

In Gardner, a case remarkably similar to this one involving volunteer fire fighters who pled guilty as first offenders to third-degree arson, the Court made clear that the "seriousness of the risk of harm" is not a statutory aggravating factor. Id. at 518-19. Rather, it is a factor that the Legislature took into account in its gradation of arson offenses. Id. at 519. Here, the judge made repeated reference to the serious nature of arson and the dangers it poses to fire fighters, and others they might encounter, in hurrying to a fire. But the fire defendant started was no different in that respect than any other fire. And the Legislature has already factored the risk of harm to persons or property in determining the four grades of arson. Gardner, supra, 113 N.J. at 519. "Because the seriousness of risk is an element of the crime with which defendant[] [was] charged, it cannot be counted as an aggravating factor in determining whether the presumption against imprisonment has been overcome." Ibid. (citing State v. Yarbough, 100 N.J. 627, 633 (1985)).

The sentencing judge also inappropriately applied aggravating factor six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted. N.J.S.A. 2C:44-1a(6). Defendant had only a juvenile record. Because a juvenile adjudication is neither a crime nor offense as defined by the Code, N.J.S.A. 2C:1-14k, it cannot serve as a basis for aggravating factor six. State v. Radziwil, 235 N.J. Super. 557, 575-76 (App. Div. 1989), aff d, 121 N.J. 527 (1990) (holding that defendant's prior convictions for driving under the influence of alcohol could not be considered an aggravating factor under N.J.S.A. 2C:44-1a(6), although they could be considered as part of defendant's overall personal history in the same fashion as convictions in municipal court or a juvenile record).

As to aggravating factor nine, the judge stated on resentencing that "if anything, I would place more weight on a factor such as the need to deter." The judge's findings on need for deterrence, while addressing defendant, focused more on the need to "make sure that people understand that [arson] is something that you can't do, that it's illegal." The Court has noted, however, that the focus of aggravating factor nine is properly on the need to deter the individual defendant because absent a need for specific deterrence, general deterrence has relatively insignificant penal value. State v. Fuentes, ___ N.J. ___, ___ (2014).

In determining whether the presumption against incarceration had been overcome, the sentencing judge could have properly considered defendant's status as a volunteer fire fighter in considering the "nature and circumstances" of the offense. Gardner, supra, 113 N.J. at 520-21. Likewise, defendant's juvenile adjudication should certainly have been assessed as part of defendant's history, character and condition. See State v. Marzolf, 79 N.J. 167, 176 (1979). But the judge was incorrect when he stated that defendant's juvenile record "weakens that [statutory] presumption against incarceration." It does not. Those factors, in combination with aggravating factor three and any specific deterrence the judge considered as part of aggravating factor nine, would have to be appraised in light of the "strong presumption against incarceration for [this] defendant[]" mandated by the Legislature. Gardner, supra, 113 N.J. at 521. Incarceration could not be ordered without a finding, by a standard higher than clear and convincing evidence, that incarceration was necessary to protect the public. Id. at 517-18 (so construing N.J.S.A. 2C:44-1e).

Because the sentencing judge failed to follow the sentencing guidelines by according defendant the benefit of the presumption against incarceration, substituted his judgment for the Legislature's regarding the seriousness of this third-degree offense, and relied upon aggravating factors having no support in the record, we vacate the sentence. A finding beyond clear and convincing evidence that incarceration was necessary for the protection of the public is not possible on this record. The judge's expressed willingness to recommend defendant for conditional release under intensive supervision is inconsistent with such a finding, notwithstanding his consideration of allowable aggravating factors, defendant's service as a volunteer fire fighter and consideration of his juvenile record.

Reversed. Defendant's custodial term is vacated. The matter is remanded for the immediate imposition of a probationary sentence without a custodial term.