STATE OF NEW JERSEY v. DEBORAH A. MEEHAN

NOT FOR PUBLICATION WITHOUT THE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.

DEBORAH A. MEEHAN,

Defendant-Respondent.

_______________________________

August 26, 2016

Before Judges Lihotz and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-12-2154.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; William Kyle Meighan, Senior Assistant Prosecutor, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the briefs).

PER CURIAM

The State appeals from what it argues is an illegal three-year custodial sentence imposed on October 8, 2015, following defendant Deborah A. Meehan's conviction for second-degree theft by unlawful taking in excess of $75,000, N.J.S.A. 2C:20-3. The State's sentencing challenge, initially raised in a cross-appeal to defendant's merits appeal, was reviewed by this court. We remanded for resentencing. State v. Meehan, No. A-4853-12 (App. Div. March 9, 2015) (slip. op. at 21). We concluded the judge erred "by downgrading defendant's offense because the record lacks compelling reasons to warrant downgrade[,]" as permitted by the "demanding" standard set forth in N.J.S.A. 2C:44-1(f)(2). Id. at 18-19.

On remand, the trial judge again concluded the mitigating factors substantially outweighed the aggravating factors and "the interest of justice demands this downgrade" to the range for a third-degree offense. N.J.S.A. 2C:44-1(f)(2). The judge imposed an identical three-year sentence.

On appeal, the State urges defendant be sentenced within the second-degree range, stating

THE RECORD LACKS COMPELLING REASONS TO WARRANT A DOWNGRADED SENTENCE OF THREE YEARS. THE COURT'S FOCUS ON THE OFFENDER RATHER THAN THE OFFENSE, THE VICTIM'S FAILURE TO AUDIT, AND THE COURT'S BELIEF THAT A THREE[-]YEAR SENTENCE IS IN ITSELF A DETERRENT FOR A THEFT OF OVER $100,000 IS CONTRARY TO THE LEGISLATIVE DETERMINATION OF THE PUNISHMENT FOR A SECOND[-]DEGREE CRIME.

We affirm.

The facts supporting the underlying conviction are detailed in our prior unpublished opinion and need not be set forth at length. See Meehan, supra, A-4853-12 (slip op. at 2-3). Generally, the facts showed defendant, over the course of the eight years she worked as a bookkeeper for a law firm, redirected the firm's funds by using a partner's signature stamp to issue checks payable to herself, which totaled more than $100,000. Ultimately, defendant confessed she wrote the checks without permission. Following a jury trial, defendant was convicted of second-degree theft of movable property having a value in excess of $75,000, N.J.S.A. 2C:20-3.

The judge imposed sentence. After finding the mitigating factors substantially outweighed the aggravating factors (findings we concluded on appellate review were supported by the record), the trial judge noted defendant's conduct amounted to "a theft crime" and not a violent offense. He sentenced defendant within the third-degree range and imposed a three-year custodial term.

On direct appeal, we affirmed defendant's conviction, but reversed the imposed sentence on the State's cross-appeal. On remand, the trial judge resentenced defendant and issued a written opinion. He again clearly and convincingly found the mitigating factors significantly outweighed the aggravating factors, and emphasized the downgrade was necessary in the "interest of justice." Viewing defendant's current circumstances, which included her completion of the ordered jail term and continued law abiding conduct, as well as her acquisition of a GED, gainful employment and commencement of restitution payments, the judge further noted returning defendant to prison would result in hardship, not only to her but to her dependent spouse, who was completely financially dependent on her for his support. The termination of defendant's income would also cause the loss of their home. Further, defendant was a principal caregiver for her grandchildren, which allowed her children to work.

The judge weighed these additional reasons when concluding application of N.J.S.A. 2C:44-1(f)(2) was warranted. He found the sentence imposed had deterred defendant, who had no further involvement in the criminal justice system and her current conduct demonstrated she was unlikely to commit another offense. The prison term imposed also served as a general deterrent to others. He noted defendant addressed events that contributed to her commission of this crime. More specifically, defendant's drug abuse was resolved, she remained abstinent and her mental health issues continued to be treated through ongoing counseling.

We review a judge's sentencing decision under an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). We will not substitute our judgment for that of the trial judge. State v. Lawless, 214 N.J. 594, 606 (2013). Rather, our limited review assures aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. State v. Miller, 205 N.J. 109, 127 (2011); State v. Dalziel, 182 N.J. 494, 504-05 (2005) (holding when exercising authority to impose sentence, a trial judge must identify and weigh all relevant aggravating and mitigating factors "fully supported by the evidence" that impact the appropriate sentence). We also consider whether legislative guidelines have been followed, require any "exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence," assure competent credible evidence supports each finding of fact upon which the judge based the sentence, and determine whether application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). If a sentencing judge properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, we affirm the imposed sentence. State v. Cassady, 198 N.J. 165, 180-81 (2009).

When imposing a sentence, generally, a judge considers "a framework of structured discretion within which [to] exercise . . . sentencing authority." State v. Case, 220 N.J. 49, 63 (2014). The Code of Criminal Justice classifies criminal conduct "as first, second, third, or fourth degree crimes in descending order of seriousness, and each degree contains a range within which a defendant may be sentenced." Ibid. (citing N.J.S.A. 2C:43-6(a)).

Under specified circumstances, the Code confers limited power to depart from the defined sentencing ranges. Id. at 64 n. 4. In this matter the trial judge applied N.J.S.A. 2C:44-1(f)(2), which permits imposition of a prison term "one degree lower" than that stated for the convicted crime. N.J.S.A. 2C:44-1(f)(2) provides in pertinent part

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

Interpreting the statute's requirements, the Supreme Court held "[t]he reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." State v. Megargel, 143 N.J. 484, 505 (1996).

When evaluating this issue, certain principles have evolved. "[T]he severity of the crime remains the single most important factor in considering whether the interest of justice demands a downgrade." State v. Lake, 408 N.J. Super. 313, 326 (App. Div. 2009). "In evaluating the severity of the crime, the trial court must consider the nature of and the relevant circumstances pertaining to the offense." Megargel, supra, 143 N.J. at 500. Because the "interest of justice" focuses on the offense and not the offender, the "circumstances used as compelling reasons for a downgrade should arise from within the context of the offense itself." Lake, supra, 408 N.J. Super. at 326. If the circumstances of the offense are "similar to a lower degree offense, a downgraded sentence may be appropriate." Ibid.

Furthermore, "[a] trial court should also state why sentencing the defendant to the lowest range of sentencing for the particular offense for which he [or she] was convicted, is not a more appropriate sentence than a downgraded sentence under section 44-1(f)(2)." Megargel, supra, 143 N.J. at 502; see also State v. Johnson, 376 N.J. Super. 163, 173 (App. Div.), certif. denied, 183 N.J. 592 (2005). "It is not enough to say that the 'interest of justice' demanded that defendant be sentenced within a third-degree range; the trial court was obligated to explain how it reached that conclusion." State v. Lebra, 357 N.J. Super. 500, 514 (App. Div. 2003).

The State argues the judge's findings solely impact aggravating and mitigating factors and no evidence supporting the necessary compelling reasons related to the offense to warrant a downgraded sentence. Among the authorities cited to support the State's request for reversal is State v. Jones, 197 N.J. Super. 604 (1984). The offense committed by the defendant in Jones was also second-degree theft by deception. Id. at 605. The defendant cashed hundreds of checks totaling more than $700,000 over a period of eight years and used the money to support gambling. Id. at 606. The sentencing judge deviated from the recommended prison sentence in a plea agreement, instead sentencing the defendant to 364 days in the county jail followed by five-years probation. Ibid. We reversed the sentence, concluding the sentencing judge did not set forth compelling reasons for the downgrade. Id. at 607-08.

There are distinctions between this matter and Jones, which were identified by the trial judge in his opinion. Importantly, this was a trial and not a plea agreement. Accordingly, the trial judge had the unique opportunity to fully consider all facts surrounding defendant's crime and evaluate those facts when he imposed a state prison term. By the time defendant was resentenced, she resolved her drug abuse and engaged psychological counseling, thus eliminating influences that contributed to her first and only criminal act. She obtained her GED, secured employment and was satisfying her restitution obligation. In Jones, the judge "desire[d] to rehabilitate the defendant," id. at 608; here, defendant demonstrated she had rehabilitated her life. Also, defendant is the sole financial support for her spouse. Her re-incarceration would impose significant hardship upon him because defendant would lose her employment and likely their home. Also, defendant suffers from some physical and mental illnesses which she currently treats. Incarceration would disrupt her ongoing treatment.

Finally, defendant, who apparently did not post bail, was incarcerated for 729 days, a period that exceeded the eighteen-month parole ineligibility period, generally accompanying a five-year prison term. The judge noted re-incarceration under circumstances where parole eligibility had already been achieved, which would also trigger loss of employment and hardship to defendant's spouse, was "unduly cruel."1

When the stated facts2 are weighed with the nature of the offense, which was a property crime as opposed to a crime involving weapons, violence, or physical injury, and when the goal of protecting the public has been achieved by defendant's demonstrated rehabilitation, Megargel, supra, 143 N.J. at 500, we cannot agree with the State's argument that the trial judge abused his discretion in downgrading the sentence imposed. We conclude the findings adequately satisfy the "interest of justice" standard by stating compelling reasons to sentence defendant in the lower range. As the Court instructed in Roth

Our new Code reflects a delicate balance between discretion and fixed sentencing. An independent judiciary is its fulcrum. When conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by us today, they need fear no second-guessing.

[Roth, supra, 95 N.J. at 365.]

We defer to the judge's findings.

Affirmed.

1 The record also suggests defendant was eligible for the county's Intensive Supervision Program and defendant argues under current guidelines she may also have been eligible for Drug Court admission.

2 We understand the trial judge also mentioned irrelevant and inappropriate facts suggesting the victim's lack of oversight as contributing to the crime, which we have ignored.