STATE OF NEW JERSEY v. D.W.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

D.W.S.,

Defendant-Respondent.

___________________________________

December 24, 2015

Submitted August 26, 2015 Decided

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 14-02-0190.

Robert D. Bernardi, Burlington County Prosecutor, attorney for appellant (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

Respondent has not filed a brief.

PER CURIAM

This is a sentencing appeal by the State. Defendant entered an open plea of guilty to one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The court downgraded the sentence to the third-degree range, see N.J.S.A. 2C:44-1(f)(2), and then imposed a sentence of three years probation, conditioned on 364 days imprisonment and other conditions, notwithstanding the presumption of incarceration. See N.J.S.A. 2C:44-1(d). The State does not challenge the court's decision to sentence defendant as a third-degree offender. However, the State contends that the facts and circumstances did not justify departure from the presumption of imprisonment. We agree.

I.

It is undisputed that defendant struck his four-year-old daughter, K.S., repeatedly with his belt on April 10, 2013. He did so to discipline her for kicking a student, and then a teacher, at school that day. Defendant initially struck K.S. on the legs, but as she moved, his blows landed on her back. K.S. screamed, cried, and ran away from him. A school employee noticed K.S.'s bruises the next day and notified the Division of Child Protection and Permanency (DCPP), which became involved with the family.1 Defendant was apparently removed from the household and required to attend parenting classes. He was ultimately allowed to return to the household in March 2014.

A Burlington County grand jury indicted defendant in February 2014. Defendant was charged with second-degree endangering, in that, while having a duty to care for K.S., he caused her harm that would make her an abused or neglected child as defined in N.J.S.A. 9:6-1, -3 and -8.21, N.J.S.A. 2C:24-4(a) (count one); and fourth-degree child abuse, in that he willfully inflicted unnecessarily severe corporal punishment and/or caused mental or physical pain to be inflicted upon K.S. by willful act, N.J.S.A. 9:6-3 (count two).

On the eve of trial, defendant entered his open plea. It was understood that defendant would seek a downgraded sentence as a third-degree offender with a probationary term, conditioned upon no more than 364 days in the Burlington County jail; and the State would seek a sentence within the third-degree range of three to five years. Defendant acknowledged in the plea form that he was pleading guilty to a crime with a presumption of imprisonment. The court did not indicate on the record its intention with respect to sentencing.2

At sentencing on September 12, 2014, the State argued for a sentence of five years imprisonment. The State emphasized defendant's prior criminal record. Defendant was fifty-one years old, and had three prior indictable convictions, and three municipal court convictions. His criminal convictions consisted of: fourth-degree criminal sexual contact in 1990, for which he received one year probation; multiple drug offenses in 1990, including, most seriously, first-degree distribution, for which he received a twenty-five-year sentence in 1996; and another first-degree drug offense in April 1993, for which he was sentenced to a concurrent fifteen-year term. He was paroled in 2003, and "maxed out" in 2010. After being paroled, defendant was convicted in municipal court in 2004 of simple assault, for which he received one year probation, conditioned on forty-five days jail, suspended; violating a fish and wildlife regulation in 2006, for which he was fined; and obstructing the administration of law, in 2007, for which he was fined. Also, in 2004, a domestic violence restraining order was entered against defendant.

Defense counsel argued for a sentence of probation conditioned on 364 days in jail. He asserted that the corporal punishment that defendant meted out was once considered socially acceptable; K.S. did not suffer significant injury; and defendant had completed parenting classes and otherwise satisfied DCPP that it was appropriate for him to be reunified with K.S. and his family. Acknowledging defendant's prior record, counsel argued that defendant had "no problems for 10 years," had quit dealing drugs, gotten married, and was employed. At the sentencing hearing, defendant apologized, expressed his remorse, stated that he had learned that the corporal punishment he meted out was inappropriate, and acknowledged that there were preferable ways to discipline and teach his daughter.

The court found aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) (risk of reoffending) and -1(a)(9) (need to deter defendant and others). The court rejected the State's suggestion that the court also find factors one, N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense); two, -1(a)(2) (the gravity and seriousness of harm inflicted and the vulnerability of the victim); and six, -1(a)(6) (extent of defendant's criminal record and seriousness of the offenses of which he has been convicted). The court found that K.S.'s injuries were not severe enough to justify finding factors one or two; and defendant's convictions were too remote to find factor six.

The court also found mitigating factors two, N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate his conduct would cause or threaten serious harm); four, 1(b)(4) (substantial grounds tending to excuse or justify defendant's conduct, though not a defense); eight, -1(b)(8) (defendant's conduct resulted from circumstances unlikely to recur); nine, -1(b)(9) (defendant's character and attitude indicate he's unlikely to reoffend); and ten, -1(b)(10) (defendant is likely to respond affirmatively to probation). With respect to factor two, the court noted that defendant had tried other forms of discipline, and believed corporal punishment was needed, although the court emphasized it was not appropriate. The court applied factor four because defendant viewed his behavior as appropriate discipline, as opposed to abuse, which the court viewed as an explanation, though not a justification, for his actions. The court found factors eight and nine because defendant had completed parenting classes while separated from his family, before securing reunification through DCPP.

In imposing a sentence in the third-degree range, and in departing from the presumption of imprisonment otherwise required by N.J.S.A. 2C:44-1(d), the court stated

In weighing the aggravating and mitigating factors on a qualitative as well as a quantitative basis, this Court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors, but I must go further. On the downward departure, I must also find that there are compelling reasons to downgrade your sentence such that the interests of justice demand a downgrade and that's really what [counsel] was referring to in terms of the Court has to go beyond that to overcome that presumption of imprisonment even on the downgrade under the case law and I do find those compelling reasons are present in this case and let me address those.

In sentencing the Court does abide by a principle of first do no harm. This Court is aware that you had also been monitored through DCPP for quite an extended period of time. You did have to undergo parenting classes, although in a moment I'll get to the proof of that, you're going to have to supply that to the Court as part of your probation. I get to monitor you under probation which wouldn't happen also in a state prison setting. But beyond that, I feel that in terms of the interests of justice, I have to evaluate what further deterrence is served by now sending you to state prison. DCPP monitored you. Unlike those of us who sit in this courtroom, they had the ability to monitor you regularly and I did Children in Court for years so I know that. They had a constant interaction with you, with KS, with the family, and after that regular monitoring, because this happened April 11th I think it was of 2013, litigation ceased on March 31st, 2014, through the DCPP. The family was reunited. You were returned to the home after 11 months. You had to undergo counseling and parenting classes, continuous court monitoring, and apparently were successful or the DCPP would never have closed the litigation on this case and allowed the family to be reunited and I have to respect that and those findings on the part of another branch of this organization.

So in looking at the case as a whole, the wishes of the family, the fact that the family is now reunited after what is an appropriate period of learning, as you indicate, but punishment also in this case, this Court is imposing the maximum amount of jail that can be imposed without moving into the state prison territory and I feel that justice is served by this sentence.

So for all of the reasons that I've indicated, I am going to sentence you to three years probation, conditioned upon your serving 364 days in the Burlington County Jail.

The State's appeal followed. The State argues the court abused its discretion in imposing a probationary term conditioned on 364 days in the county jail. It contends the court erred in rejecting aggravating factor six, and the facts and circumstances did not justify a predicate finding that defendant's "imprisonment would be a serious injustice which overrides the need to deter such conduct by others."3

II.

We exercise limited review of the trial court's sentence. State v. Miller, 205 N.J. 109, 127 (2011). We may not substitute our judgment for that of the trial court. State v. Evers, 175 N.J. 355, 386 (2003). We defer to the trial court's assessment of aggravating and mitigating factors if supported by competent, credible evidence in the record. Miller, supra, 205 N.J. at 127. However, we may review a sentence to determine if the sentencing guidelines were violated. Evers, supra, 175 N.J. at 387.

At issue in this case are the guidelines governing a decision to overcome the presumption of imprisonment that attaches to a first or second-degree offense.

The court shall deal with a person who has been convicted of a crime of the first or second degree . . . by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.
 
[N.J.S.A. 2C:44-1(d).]

The decision to depart from the presumption of imprisonment is separate and distinct from the decision to impose a sentence for a first or second degree offense within the range appropriate for a crime one degree lower. See N.J.S.A. 2C:44-1(f); Evers, supra, 175 N.J. at 389. A downgrade may be imposed "where the court is clearly convinced that the mitigating factors substantially outweigh the aggravated factors and where the interest of justice demands . . . ." N.J.S.A. 2C:44-1(f)(2). "[T]he reasons offered to dispel the presumption of imprisonment must be even more compelling than those that might warrant downgrading an offense." Evers, supra, 175 N.J. at 389; State v. Megargel, 143 N.J. 484, 498-502 (1996). Even if a court decides to impose a downgraded sentence for a second-degree offense, the presumption of incarceration still applies. State v. O'Connor, 105 N.J. 399, 404-05 (1987). A term of imprisonment of 364 days or less, imposed as a condition of probation pursuant to N.J.S.A. 2C:43-2(b)(2), does not satisfy the presumption of imprisonment. O'Connor, supra, 105 N.J. at 409-11.

The Court in Evers reviewed prior precedent applying section 1(d), noting that a defendant bears a "heavy burden" to overcome the presumption of imprisonment, and that the absence of a prior record, or a defendant's amenability to probation, has not sufficed. Evers, supra, 175 N.J. at 390-92. In an exceptional case in which the Court approved departure from the presumption, State v. Jarbath, 114 N.J. 394 (1989), the Court relied on the "sum of [the defendant's] condition and character" she was mentally retarded and psychotic "and the level of her culpability on the continuum of reckless manslaughter." Evers, supra, 175 N.J. at 389-90.

A defendant must show "that his character and condition were so unique or extraordinary, when compared to the class of defendants facing similar terms of incarceration, that he was entitled to relief from the presumption of imprisonment." Id. at 392. A court must find that "the human cost of imprisoning a defendant for the sake of deterrence constitutes a serious injustice." Ibid.

The court clarified what kind of "character and condition" is required to satisfy the statute

In deciding whether the "character and condition" of a defendant meets the "serious injustice" standard, a trial court should determine whether there is clear and convincing evidence that there are relevant mitigating factors present to an extraordinary degree and, if so, whether cumulatively, they so greatly exceed any aggravating factors that imprisonment would constitute a serious injustice overriding the need for deterrence.

[Evers, supra, 175 N.J. at 393-94.]

In assessing the need to deter, and whether the "serious injustice" of imprisonment would override that need, a court must consider the circumstances and severity of the offense

In determining the role that deterrence should play in the serious injustice standard, we begin by restating that there is a presumption of imprisonment for those convicted of first- and second-degree crimes. N.J.S.A. 2C:44-1d. However, a violation of a criminal statute may be more or less egregious depending on the particular facts. "In evaluating the severity of the crime, the trial court must consider the nature of and the relevant circumstances pertaining to the offense. Every offense arises in different factual circumstances." Megargel, supra, 143 N.J. at 500. For example, in Jarbath, supra, the Court in assessing the defendant's culpability for manslaughter, referred to the criminal act as "accidental," and focused on the severe mental retardation of the defendant. 114 N.J. at 405-06. We have noted that "[c]ourts should consider a defendant's role in the incident to determine the need to deter him from further crimes and the corresponding need to protect the public from him." Megargel, supra, 143 N.J. at 501. "'[D]emands for deterrence are strengthened in direct proportion to the gravity and harm[ful]ness of the offense and the deliberateness of the offender.'" Id. at 501 (second alteration added) (quoting State in the Interest of C.A.H. & B.A.R., 89 N.J. 326, 327 (1982)).

[Evers, supra, 175 N.J. at 394.]

The mitigating factors identified in the Code, N.J.S.A. 2C:44-1(b), inform the court's determination

Accordingly, trial courts should look to the statutory sentencing mitigating factors and determine whether those factors are present to such an extraordinary degree and so greatly exceed the aggravating factors that a particular defendant is distinguished from the "heartland" of cases for the particular offense. . . . It is the quality of the extraordinary mitigating factors taken together that must be weighed in deciding whether the "serious injustice" standard has been met. The trial court also must look at the gravity of the offense with respect to the peculiar facts of a case to determine how paramount deterrence will be in the equation. Generally, for first- and second-degree crimes there will be an overwhelming presumption that deterrence will be of value.

[Evers, supra, 175 N.J. at 394-95.]

Applying these guidelines, we are constrained to conclude that the record does not support the court's determination to depart from the presumption of incarceration. We note that the court did not, either in its oral sentence or in the judgment of conviction, expressly find that imprisonment would result in a "serious injustice which overrides the need to deter such conduct by others." The court referred only to the "interests of justice," which is incorporated in the standard governing the downgrade decision. The court referred to "what further deterrence is served by now sending [defendant] to state prison"; however, the court's consideration of deterrence plainly pertained to specific deterrence of defendant. The court noted defendant's rehabilitation while under DCPP oversight. However, the statute requires the court to determine whether the serious injustice of imprisonment "overrides the need to deter such conduct by others." N.J.S.A. 2C:44-1(d) (emphasis added).

In any event, we conclude that the record does not support a finding that defendant's "character and condition were so unique or extraordinary when compared to the class of defendants facing similar terms of incarceration." Evers, supra, 175 N.J. at 392. This was not an unusual episode of aberrant or anti-social behavior. Defendant has an extensive criminal record, which did not cease after his release from parole after serving lengthy sentences on first-degree drug convictions. He has been convicted of assault, and has committed domestic violence leading to entry of a restraining order. Although K.S. did not suffer permanent or significant injuries, she undoubtedly suffered bruises significant enough to alert teachers the next day.

We are also struck by the age and immaturity of the child. Defendant reportedly admitted that he began using a belt to discipline K.S. at the age of three-and-a-half. Although defense counsel argued that corporal punishment was widely practiced and accepted a generation ago, the corporal punishment meted out in this case was excessive under the circumstances. We are confident it would fall outside even outmoded standards of behavior, which may have tolerated slaps of a hand on a young child's buttocks, but not repeated blows to the legs with a belt. Moreover, defendant's successful completion of parenting classes, and his positive prospects for success on probation, do not adequately distinguish him from others who have completed the same programs, after meting out excessive corporal punishment and triggering the involvement of DCPP. Under these circumstances, we cannot conclude that his imprisonment would constitute a serious injustice that overrides the need to deter other parents and adults who may resort to such excessive corporal punishment.

We conclude by recognizing that there is a continuum of behavior that may satisfy the child abuse and neglect statute, N.J.S.A. 9:6-1 and -8.21(c), and, in turn, the child endangering statute, N.J.S.A. 2C:24-4(a). A prosecutor exercises broad discretion in determining whether to prosecute such acts as a fourth-degree offense, pursuant to N.J.S.A. 9:6-3, or as a second-degree offense, pursuant to N.J.S.A. 2C:24-4(a). The elements are essentially the same, although the sanctions are obviously quite different. See Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:24-4 (2015) (discussing and comparing N.J.S.A. 2C:24-4 and N.J.S.A. 9:6-3). Prosecutorial discretion is not immune from review. Cf. State v. Meyer, 192 N.J. 421, 432 (2007) (applying "gross and patent abuse of prosecutorial discretion" standard to review of decision not to admit offender into Drug Court under N.J.S.A. 2C:35-14). As in this case, the court may determine that a person convicted of a second-degree offense should be sentenced within the third-degree range.

However, the court is bound by the Legislature's determination to grade this offense as a second-degree crime, carrying with it the presumption of imprisonment. See Evers, supra, 175 N.J. at 399 (stating that it is the Legislature's prerogative to grade offenses). The crime to which defendant pleaded guilty was raised from a third-degree to a second-degree offense in 1992. L. 1992, c. 6, 1.

In sum, the record does not support the trial court's departure from the presumption of incarceration. We remand to the trial court for further proceedings. As we noted at the outset, it is unclear whether defendant entered his plea with the court's assurance that the court would impose a sentence of probation, conditioned on 364 days imprisonment. If defendant did, then he would be entitled to withdraw his plea. R. 3:9-3(e).

Sentence reversed. Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 The record does not clearly reflect the extent of K.S.'s injuries. Photographs were apparently presented to the sentencing court, but they are not included in the record before us. Defendant admitted in his allocution that he left bruises on his child.

2 It is unclear whether the court indicated its tentative intention in another setting. Question 22 of the plea form, regarding any other promises, was not completed, but the box for "non-negotiated pleas" was also blank. During the plea hearing, counsel and the court discussed prior plea negotiations, in which the court apparently expressed a willingness to sentence defendant to a probationary term conditioned on 270 days imprisonment. At sentencing, the court confirmed that it had expressed its intention to impose probation conditioned on 364 days, but it was unclear whether the court did so in advance of the plea.

3 Defendant did not file a timely answering brief, and the court entered an order suppressing the filing of any brief thereafter.