STATE OF NEW JERSEY v. ROBERT J. WIKANDER

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3275-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT J. WIKANDER,

Defendant-Appellant.

________________________________________________________________

October 4, 2010

 

Argued September 14, 2010 - Decided

 

Before Judges Payne, Baxter and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-12-1607.

 

Joel C. Seltzer argued the cause for appellant.

 

William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent (Marlene Lynch Ford, Ocean County Prosecutor, attorney; Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Mr. Meighan, on the brief).

PER CURIAM

While driving with a blood alcohol content (BAC) well above the legal limit, defendant crashed into two young girls walking on the sidewalk, leaving each of them permanently disfigured. He entered a negotiated plea of guilty to two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). At the time of original sentencing in 2005, and again at sentencing remand proceedings in 2007 and 2009, the judge sentenced him to consecutive seven-year terms, each subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After careful consideration of defendant's arguments, we reject his claim that the imposition of consecutive NERA terms resulted in an excessive sentence. We affirm.

I.

On May 26, 2003, after consuming alcohol to the point of intoxication, defendant drove to Lakewood to purchase cocaine. While speeding, he drove his vehicle onto the sidewalk, where he crashed into two young girls who were unable to escape defendant's vehicle as it veered toward them. After running over R.H. and M.H., who were cousins, defendant sped off and stopped a half-mile down the road only because one of the vehicle's front tires was shredded. When police arrived moments later, defendant smelled of alcohol and appeared intoxicated. While being placed under arrest, defendant began to struggle, at which point a bag of cocaine fell from his pocket. Two more bags of cocaine were recovered, one in his pocket and another in the car. Defendant's BAC was .178.

R.H. was ten years old at the time. As a result of defendant's conduct, she suffered a pelvic fracture, a right hip dislocation and a fractured right hip socket, for which she underwent numerous surgeries. She now walks with difficulty, is unable to run and is in chronic pain. Her treating physicians report that she will never have a normal leg again.

M.H., who was eleven years old at the time, suffered a "complex comminuted depressed skull fracture." Metal plates were placed in her head to close and stabilize her skull. She also sustained multiple facial fractures. In particular, the facial fractures included her left cheekbone, the bones around her eye socket and a broken nose. M.H. also sustained a severe laceration to her scalp and a fracture to one of the bones of her arm. She experienced numerous serious complications after the initial surgery, including severe malnutrition and peripheral vascular insufficiency, for which she underwent a gastrotomy. The scalp wound did not heal properly and formed an abcess, which required an additional surgery to drain and clean the wound area. As a result of the injuries to M.H.'s face, she has scars running down her face and her eyes are not symmetrical. Feeling she has been "disfigured," and distressed by the continual teasing from her classmates, M.H. dropped out of school.

Prior to the events of May 26, 2003, defendant had been sober for a period of ten years, but in the weeks prior to the day in question, he relapsed to the point where he typically consumed one to two six packs of beer or one-half pint of vodka daily.

As we have noted, defendant entered a negotiated plea of guilty to two counts of second-degree aggravated assault, reserving the right to seek concurrent sentences on the two counts. At the time of sentencing on January 10, 2005, the judge found the existence of two mitigating factors, defendant had no prior convictions and his imprisonment would entail excessive hardship to his wife and children. The judge found three aggravating factors: number two, the gravity and seriousness of the harm inflicted on the victims, N.J.S.A. 2C:44-1(a)(2); number three, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); and number nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9).

In finding the existence of aggravating factor three, the judge observed that even though defendant had entered and successfully completed a twenty-eight day in-patient alcohol treatment program while on bail, defendant had previously experienced a ten-year period of sobriety, which had ended abruptly in the alcoholism relapse and drug abuse that caused him to injure the victims. The judge concluded that further relapses were possible, thereby creating a risk of future criminal episodes similar to the one for which he was being sentenced.

The judge imposed consecutive sentences for each of the two counts, justifying the consecutive sentences as follows:

[T]he Court has also made a separate, as required, and independent analysis under State v. Yarbough and its progeny. And I am satisfied that consecutive sentences are required.

 

There are separate victims here. And while this is one circumstance that happened over a matter of split seconds, or very brief period of time, these separate victims will, for the rest of their lives, suffer independently the consequences of the defendant's actions on that date.

 

And the only proper, in this Court's view, under all of the standards as set forth by our Supreme Court, term of punishment, recognizing that our criminal code requires punishment for illegal acts, that there be separate punishments for each of the separate victims.

 

Defendant appealed the January 10, 2005 sentence, arguing: 1) the judge impermissibly double counted several aggravating factors, which led the judge to impose the maximum base term permitted by the plea agreement, a seven-year NERA term, rather than a lesser sentence; and 2) consecutive sentences were not justified in light of the fact that the convictions resulted from a single criminal act committed at a single time and place.

Although we found the first of defendant's two arguments unconvincing, we remanded for resentencing because the transcript of the January 18, 2005 sentencing proceeding did not "reflect that the trial court took into consideration the dramatic affect upon defendant of two consecutive sentences with separate [NERA] eighty-five percent periods of parole ineligibility." State v. Wikander, No. A-2866-04 (App. Div. August 2, 2006) (slip op. at 6). We directed the judge to "consider the real-time consequences of NERA" in formulating the sentence. (Id. at 5).

On September 28, 2007, during the remand proceedings, the judge imposed the same consecutive sentence he had imposed originally, addressing the real-time consequences of two consecutive NERA terms as follows:

I did not fail to take into consideration the real-time consequences of the No Early Release Act. To the contrary. Like the Appellate court, this Court was cognizant then and is cognizant now that the real difference in time served between a N.E.R.A. sentence under [N.J.S.A.] 2C:43-7.2 is significantly more severe than a flat sentence prior to this offense being included in the No Early Release Act at which time it was adopted.

 

The judge then proceeded to justify his decision to run the two seven-year sentences consecutively rather than concurrently, reasoning:

I believe that the proper analysis is the test under State v. Yarbough[.]

 

. . . .

 

The primary reason for the consecutive sentences here is twofold. First, and foremost, there are separate victims. There are multiple victims. Each of these victims suffered serious bodily injury.

 

Not significant bodily injury, not bodily injury, but serious bodily injury. . . . This is permanent injury; the consequences of which each of these victims suffer outwardly the scars of to this day. In addition to which they suffer psychologically from the devastating impact of this automobile running them over on that occasion.

 

The second factor is the magnitude and the longevity [of the injuries]. The average life expectancy is . . . eighty-three years now for a female in this country. These girls were ten and eleven years old. What I saw of the victims on the day of sentencing originally, and what I see from one of the victims now, they will suffer the consequences psychologically and physically outwardly and inwardly for the rest of their life.

 

. . . .

 

While there are not a multitude of reasons under Yarbough to impose a consecutive sentence, I believe the fact that there are separate victims that suffer their individual private hell is sufficient for the imposition of consecutive sentences.

 

To impose concurrent sentences is to tell one or the other of these young ladies that their injury was free. Collateral damage. The injury -- which girl do I tell [her] injuries were collateral to the other [girl's] injuries?

 

Defendant again appealed. We concluded that the September 28, 2007 remand proceedings had not satisfied the requirements we imposed when we remanded for resentencing in 2006. For that reason, we again remanded for resentencing and required the trial judge to issue a "detailed statement of reasons" that would "articulate the factors that compel or support a consecutive sentence." State v. Wikander, No. A-1330-07 (App. Div. December 24, 2008). A different judge, Judge Hodgson, presided over the remand proceedings on January 30, 2009 due to the unavailability of the original sentencing judge. In again imposing consecutive seven-year NERA sentences, Judge Hodgson reasoned:

As I've indicated, there were two victims in this matter, both of them were seriously injured. . . .

 

I give very great weight to that factor in Yarbough, there are two separate victims and there should be no free crimes. . . .

 

The sentences, the consecutive sentences are appropriate and I'm going to reimpose the consecutive sentences as they are imposed. The reasons for giving the consecutive sentences are well supported by the facts and are, as I have just indicated, involving two victims and supported by Yarbough and that there should be no free crimes.

 

On appeal, defendant raises the following claims:

I. THE TRIAL COURT ON REMAND FAILED TO ARTICULATE ITS REASONS FOR CONSECUTIVE SENTENCES IN ACCORDANCE WITH THE APPELLATE DIVISION OPINION DATED AUGUST 2, 2006 OR ORDER OF DECEMBER 28, 2008.

 

II. LACK OF STATUTORY GUIDELINES LEAVES UNFETTERED DISCRETION IN SENTENCING COURT'S HANDS RELATIVE TO THE IMPOSITION OF CONSECUTIVE SENTENCES.

 

III. THE ORIGINAL SENTENCE IMPOSED [ON JANUARY 10, 2005] IMPOSING TWO CONSECUTIVE TERMS RELIED ON AN IMPROPER DOUBLE COUNTING OF AGGRAVAT[ING] FACTORS WHILE IGNORING MITIGATING FACTORS ADDRESSED UNDER N.J.S.A. 2C:44-1(b). JUDGE HODGSON'S 2009 SENTENCE INCORPORATED THESE SAME ERRORS AND NOW REQUIRES REVERSAL AND MODIFICATION OF THE SENTENCE IMPOSED.

 

A. Aggravating sentencing factors were double counted. Concurrently the Court Engaged in Impermissible Fact Finding

 

B. The Sentencing Court on Remand Ignored the Mitigating Factors Favorable to the Defendant.

 

As we have already noted, the scope of the remand proceedings ordered in both A-2866-04 and A-1330-07 was confined to the issue of the propriety of consecutive sentences. We did not direct the sentencing judge to reconsider the base term of seven years. Because the remands were confined to the issue of whether consecutive sentences were appropriate, we will confine our review of defendant's arguments on appeal to that issue. Therefore, we will address Points I and II, but not Point III.

II.

In State v. Yarbough, 100 N.J. 627, 637 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the seminal opinion addressing the issue of concurrent and consecutive sentencing, the Court observed that with the enactment of the new Penal Code in 1983, the Legislature made a fundamental change in the purpose of sentencing. While "prior law . . . reflected the viewpoint that reformation and rehabilitation of offenders was a major goal of criminal sentencing[,]" giving rise to a "presumption in favor of concurrent sentencing to facilitate the reform of the defendant[,]" the current "'retributive'" system prescribes consecutive sentences for separate crimes. Ibid. (internal citation omitted). The Court established the following criteria to guide judges in deciding whether to impose concurrent or consecutive sentences:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

 

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

 

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

 

(a) the crimes and their objectives were predominantly independent of each other;

 

(b) the crimes involved separate acts of violence or threats of violence;

 

(c) the crimes were committed at different times or separate places . . .;

 

(d) any of the crimes involved multiple victims;

 

(e) the convictions for which the sentences are to be imposed are numerous;

 

(4) there should be no double counting of aggravating factors;

 

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense;1

 

[Id. at 643-44 (internal footnotes omitted).]

 

In both State v. Carey, 168 N.J. 413, 430-31 (2001), and State v, Molina, 168 N.J. 436, 442 (2001), the Court applied the Yarbough criteria and held that it was not an abuse of discretion to impose consecutive sentences when an intoxicated driver kills or injures more than one victim in a single incident. In Carey, the Court expressly approved the imposition of consecutive seven-year terms of imprisonment for each of the two counts of vehicular homicide, thereby reversing an Appellate Division opinion that had vacated the consecutive sentence as excessive. Supra, 168 N.J. at 421.2 The Court approved the imposition of consecutive sentences, reasoning:

We have little difficulty concluding that a drunk-driving accident that results in two deaths and serious bodily injuries to two others is distinctively worse than a drunk-driving accident that results in death or serious bodily injuries to a single individual. . . . "[T]he total impact of singular offenses against different victims will generally exceed the total impact on a single individual who is victimized multiple times." Accordingly, defendant's culpability exceeds the culpability of someone who commits the same group of offenses against a single victim because culpability is influenced not only by the single act of driving while drunk, but also by the number of victims killed or caused to sustain serious bodily injuries the singular criminal event generates.

 

Although that principle resonates most clearly in cases in which a perpetrator intentionally targets multiple victims (e.g., a double murder or robbery), it also applies to cases in which, as here, the defendant does not intend to harm multiple victims but it is foreseeable that his or her reckless conduct will result in multiple victims.

 

[Id. at 428-29 (internal citation omitted).]

 

Defendant urges us to ignore the Court's approval in Carey and Molina of consecutive sentences when an intoxicated driver injures multiple victims. He maintains that "both cases were decided prior to the passage of NERA" and therefore their reasoning is inapplicable to sentences, such as his, that require a judge to impose a NERA eighty-five percent parole ineligibility term. He also argues that "both decisions involved fatalities. There are no fatalities in this matter." Neither argument is persuasive.

As the State correctly argues, the NERA statute, N.J.S.A. 2C:43-7.2, became effective on June 9, 1997, L. 1997, c. 117, 2, and was amended effective June 29, 2001, L. 2001, c. 129, 1. Although the crimes in both Molina and Carey were committed prior to the original enactment of NERA in 1997, and thus were not subject to NERA's eighty-five percent period of parole ineligibility, both cases were decided by the Supreme Court on July 9, 2001, which was more than four years after NERA was initially enacted, and after the NERA statute was amended in 2001 to make clear which cases were subject to its provisions. Moreover, by the time the Supreme Court decided Carey and Molina, it had already decided State v. Thomas, 166 N.J. 560, 569 (2001), in which it held that the Legislature enacted NERA to increase the length of sentences served by violent offenders. Thus, at the time Carey and Molina were decided, the Court was aware that its approval of consecutive sentences for multiple alcohol-related deaths or serious bodily injuries was subject to the parole ineligibility periods required by NERA. Consequently, it is beyond dispute that the Court's approval of consecutive sentences in Carey and Molina was not limited to pre-NERA crimes. We thus reject defendant's contention that Carey and Molina are distinguishable because the sentences under review there were not NERA crimes.

We likewise reject defendant's contention that Carey and Molina involved alcohol-related fatalities, rather than second-degree aggravated assault, and therefore their reasoning is inapplicable here. To the contrary, the Court's reasoning expressly embraced both alcohol-related fatalities and alcohol-related serious bodily injury:

When a trial court is faced with a decision whether to impose consecutive or concurrent sentences, the court must determine whether the Yarbough factor under consideration "renders the collective group of offenses distinctively worse than the group of offenses would be were that circumstance not present." . . . Crimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences.

 

[Carey, supra, 168 N.J. at 428-29 (emphasis added) (internal citations and quotations omitted).]

 

Thus, as is evident from the portion of the Court's opinion in Carey that we have emphasized, the Court expressly authorized consecutive sentences when the defendant's conduct causes serious bodily injury to a victim. Contrary to defendant's argument, the Court's approval of consecutive sentences when there are multiple victims was not limited to fatalities. We thus reject in its entirety defendant's argument that the Carey and Molina presumption in favor of consecutive sentences is inapplicable here.

Finally, we reject defendant's contention that the judge was obliged to consider the "real-time" parole consequences of a NERA term when imposing consecutive sentences on the two counts. In its recent opinion in State v. Bieniek, 200 N.J. 601, 610 n.1 (2010), the Court held that the "impact of the eighty-five percent period of parole ineligibility on the time defendant would spend in custody" is not a "statutory mitigating factor," and therefore a judge is not required to address the NERA consequences when imposing sentence. Ibid.

We recognize that Bieniek did not involve consecutive sentences. Instead, the sole issue in Bieniek was whether the sentence imposed for the alcohol-related fatality was excessive. Id. at 611-12.3 Even though Bieniek did not involve consecutive sentences, we nonetheless view the Court's observation in Bieniek that the real-time consequences of NERA are not a "statutory mitigating factor" as equally applicable here. That is because here, as in Bieniek, the sole issue is whether the sentence imposed was excessive. We see no reason to deem the Court's comment in Bieniek inapplicable to sentences containing consecutive counts. Thus, the concern we expressed in our 2006 opinion about the "real-time" consequences of a NERA parole ineligibility term when two consecutive sentences are imposed has now been laid to rest by Bieniek, because a sentencing judge is not required to reduce an otherwise appropriate sentence merely because the crime for which a defendant is being sentenced is subject to NERA. Id. at 610 n.1.

Having carefully considered defendant's arguments in light of the record, we are satisfied that the imposition of consecutive sentences here did not constitute a mistaken exercise of the broad discretion afforded sentencing judges by State v. Roth, 95 N.J. 334, 364-65 (1985). As the Court observed in Carey, supra, 168 N.J. at 431, "as a general matter," consecutive sentences should be imposed on defendants who drive while intoxicated and cause "accidents that result in multiple deaths or multiple persons sustaining serious . . . injuries." Here, the grievous injuries inflicted on two young girls, who face the certainty of life-long deformity and permanent disability caused by defendant's decision to drive drunk on May 26, 2003, amply justify the imposition of consecutive sentences. We have no occasion to interfere with the judge's exercise of discretion. See, Roth, supra, 95 N.J. at 364-65. Defendant's remaining arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 The sixth Yarbough factor, which placed a limit on the aggregate length of consecutive sentences, was abrogated by statute in 1993 when the Legislature enacted N.J.S.A. 2C:44-5(a), which provides "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses."

2 The sentencing judge also imposed sentence for two counts of assault by auto for the other two victims, with the two assault by auto sentences to be concurrent to each other and concurrent to the vehicular homicide sentences. Id. at 421.

3 Although the defendant's conduct in Bieniek resulted in his conviction for second-degree aggravated assault to a different victim, that sentence, pursuant to the plea agreement, was ordered to be served concurrently to the aggravated manslaughter conviction. Id. at 605. The only issue on appeal was whether the eighteen-year NERA sentence on the aggravated manslaughter conviction was excessive. Id. at 606, 611-12.