New Jersey v. Liepe

Annotate this Case
Justia Opinion Summary

After drinking six to ten beers, defendant William Liepe drove his Ford Explorer at approximately 1:00 p.m. Traveling at about forty-five miles per hour, defendant struck the rear end of a Honda Accord waiting to make a left turn. The car was driven by a thirty-five-year-old man, M.G., who was driving his eleven-year-old son, M.J.G., and a nine-year-old family friend, R.S., to a softball game. The collision sent the Honda into the northbound lane, where it was struck by a Cadillac Escalade driven by a woman who was taking her mother, R.V., and her two children on a shopping trip. The second collision sent the car into the parking lot of the softball field. The accident killed R.S. M.J.G. was permanently paralyzed from the waist down as a result of the accident. He was confined to a wheelchair and requires continuous medical care for the rest of his life. M.G. also sustained very serious injuries: he broke many bones, had injured organs, and required a forty-five day hospitalization with multiple surgeries. The driver of the Cadillac and her children were unharmed in the accident; however, R.V. sustained back and neck injuries. Defendant was tried before a jury and was convicted on all counts. The Appellate Division affirmed defendant’s convictions but vacated his sentence and remanded for resentencing, observing that defendant would be ineligible for parole until he reached the age of eighty-nine and found that sentence “shocking to the judicial conscience.” The State appealed, challenging the appellate court's holding that the trial court abused its discretion in imposing consecutive terms and that defendant's aggregate sentence so shocked the judicial conscience. The New Jersey Supreme Court did not share the Appellate Division's view that the trial court erred in arriving at defendant's sentence, and reversed.

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

                      State v. William T. Liepe (A-7-18) (080788)

Argued March 12, 2019 -- Decided August 6, 2019

PATTERSON, J., writing for the Court.

       The Court reviews consecutive terms of incarceration imposed on defendant
William T. Liepe for convictions arising from a motor-vehicle accident he caused when
driving while intoxicated.

        After drinking six to ten beers, defendant drove his Ford Explorer south on
Cologne Avenue in Mays Landing at approximately 1:00 p.m. Travelling at about forty-
five miles per hour, defendant struck the rear end of a Honda Accord waiting to make a
left turn. The car was driven by a thirty-five-year-old man, M.G., who was driving his
eleven-year-old son, M.J.G., and a nine-year-old family friend, R.S., to a softball game.
The collision sent the Honda into the northbound lane, where it was struck by a Cadillac
Escalade driven by a woman who was taking her mother, R.V., and her two children on a
shopping trip. The second collision sent the car into the parking lot of the softball field.

        The accident killed R.S. M.J.G. was permanently paralyzed from the waist down
as a result of the accident. He is confined to a wheelchair and will require continuous
medical care for the rest of his life. M.G. also sustained very serious injuries: he broke
many bones, had injured organs, and required a forty-five day hospitalization with
multiple surgeries. The driver of the Cadillac and her children were unharmed in the
accident; however, R.V. sustained back and neck injuries.

        Defendant was tried before a jury and was convicted on all counts. The trial court
considered the aggravating and mitigating factors under  N.J.S.A. 2C:44-1(a) and (b). It
found three aggravating factors, to which it accorded varying weight, and one mitigating
factor, to which it accorded moderate weight. The court concluded that the aggravating
factors outweighed the mitigating factors. Citing  N.J.S.A. 2C:44-5, State v. Yarbough,
 100 N.J. 627, 643-44 (1985), and State v. Carey,  168 N.J. 413, 427-31 (2001), the trial
court addressed the question of whether defendant’s terms of incarceration for his
individual offenses should run concurrently or consecutively to one another. The court
noted that, although it was mindful of defendant’s age, its goal was “to impose an
appropriate sentence for the crimes committed and not one designed to assure his release
prior to the end of his life.”


                                             1
       The trial court sentenced defendant to three consecutive terms of imprisonment:
twenty years for the first-degree aggravated manslaughter of R.S.; seven years for the
second-degree aggravated assault of M.J.G.; and five years for the second-degree
aggravated assault of M.G. Each of the three terms was subject to an eighty-five percent
period of parole ineligibility. For the fourth-degree assault by auto of R.V., the court
imposed a term of one year’s imprisonment to be served concurrently with defendant’s
other terms of incarceration. Defendant’s aggregate sentence was thirty-two years’
incarceration with a parole ineligibility period of twenty-seven years.

       The Appellate Division affirmed defendant’s convictions but vacated his sentence
and remanded for resentencing.  453 N.J. Super. 126, 142 (App. Div. 2018). The
Appellate Division observed that defendant would be ineligible for parole until he
reached the age of eighty-nine and found that sentence “shocking to the judicial
conscience.” Id. at 133, 135. The Appellate Division “discern[ed] from the [trial]
judge’s decision to impose consecutive terms that he believed Carey required consecutive
terms -- a conclusion the Court expressly rejected” in Carey. Id. at 136. The Appellate
Division also construed the holding of Carey to be limited to cases in which a defendant’s
conduct killed more than one victim, and thus determined Carey to be inapplicable to a
single-fatality case such as this. Id. at 140-41. The Appellate Division stated that
defendant’s sentence “has not been shown to be in accord with any other sentence
imposed in similar circumstances” and opined that this disparity impairs “the overarching
Yarbough goal that there be uniformity in sentencing.” Id. at 142. In support of that
contention, the Appellate Division attached an appendix in which it “synopsized all
available post-Carey decisions . . . identifying sentences imposed in multiple-victim
vehicular homicide cases.” Id. at 139 n.5, 142-45.

       The Court granted the State’s petition for certification.  235 N.J. 295 (2018).

HELD: The trial court properly applied the factors identified in Yarbough for the
imposition of consecutive sentences, and defendant’s sentence is consistent with the
principles stated in Carey and does not shock the judicial conscience. The Court reverses
the Appellate Division’s judgment and reinstates the sentence that the trial court imposed.

1. Appellate review of a sentencing determination is limited to consideration of:
(1) whether guidelines for sentencing established by the Legislature or by the courts were
violated; (2) whether the aggravating and mitigating factors found by the sentencing court
were based on competent credible evidence in the record; and (3) whether the sentence
was nevertheless clearly unreasonable so as to shock the judicial conscience. The
sentencing provisions of the New Jersey Code of Criminal Justice are based on notions of
proportionality and focus on the gravity of the offense. In Yarbough, the Court provided
guidance to trial courts determining whether to impose concurrent or consecutive terms
of incarceration,  100 N.J. at 636-37, and identified guidelines for that decision, id. at 643-
44. (pp. 15-18)


                                              2
2. In Carey, the Court reinstated the consecutive sentences imposed by the trial court for
two counts of vehicular homicide for the deaths of two people in a car accident caused by
an intoxicated driver.  168 N.J. at 420-21, 431. The Court concluded that “[c]rimes
involving multiple deaths or victims who have sustained serious bodily injuries represent
especially suitable circumstances for the imposition of consecutive sentences,” id. at 428,
and held that when a judge sentences a defendant in a vehicular homicide case, “the
multiple-victims factor is entitled to great weight and should ordinarily result in the
imposition of at least two consecutive terms when multiple deaths or serious bodily
injuries have been inflicted upon multiple victims by the defendant,” id. at 429-30. The
Court did not impose a presumption in favor of consecutive terms. It simply observed
that when a sentencing court compares the harm inflicted by intoxicated driving in the
multiple-victim setting with the harm that would have resulted from the offense were
there only a single victim, it is likely to conclude that the harm in the former setting is
“distinctively worse” than that in the latter. See id. at 428. Like any Yarbough analysis,
the sentencing court’s determination regarding consecutive and concurrent terms in the
vehicular homicide setting turns on a careful evaluation of the specific case. (pp. 18-24)

3. Nothing in the trial court’s determination in this case suggests that it reached its
decision through the application of a presumption, contrary to the Appellate Division’s
suggestion.  453 N.J. Super. at 135-36. The court deemed the impact of defendant’s
conduct on both R.S. and M.J.G. to be the “worst consequences imaginable,” and
observed that the impact of defendant’s conduct on M.G. to be “extremely serious.” To
the trial court, the imposition of concurrent sentences for defendant’s offenses would not
ensure accountability. The trial court considered the fairness of the aggregate sentence,
taking into account defendant’s age. It properly viewed its primary obligation, however,
not to ensure that defendant would live long enough to be released on parole, but to craft
a sentence warranted by the offenses. The Court finds no deviation from the Code’s
sentencing objectives in the trial court’s determination, and accordingly finds no error.
Nor does the Court find the sentence imposed by the trial court to shock the judicial
conscience. The Court has never imposed on a trial court the obligation to demonstrate
that a sentence comports with sentences imposed by other courts in similar cases. The
Yarbough guidelines promote proportionality not by a comparative analysis of the
sentencing practices of different courts, but by focusing the trial court on the “facts
relating to” the defendant’s crimes. Carey,  168 N.J. at 423; see also Yarbough,  100 N.J.
at 643-44. Here, the trial court properly focused on the case before it, and on the
devastating impact of defendant’s crimes. (pp. 24-27)

       The judgment of the Appellate Division is reversed, and the sentence imposed
by the trial court is reinstated.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’S opinion.



                                             3
                   SUPREME COURT OF NEW JERSEY
                         A-
7 September Term 2018
                                   080788


                            State of New Jersey,

                             Plaintiff-Appellant,

                                      v.

                             William T. Liepe,

                           Defendant-Respondent.

                  On certification to the Superior Court,
              Appellate Division, whose opinion is reported at
                   453 N.J. Super. 126 (App. Div. 2018).

                  Argued                      Decided
               March 12, 2019               August 6, 2019


           Jennifer E. Kmieciak, Deputy Attorney General, argued
           the cause for appellant (Gurbir S. Grewal, Attorney
           General, attorney; Jennifer E. Kmieciak and Sarah E.
           Elsasser, Deputy Attorney General, of counsel and on the
           briefs).

           Jill R. Cohen argued the cause for respondent (Jill R.
           Cohen, on the briefs and William T. Liepe, pro se, on the
           supplemental letter brief).


         JUSTICE PATTERSON delivered the opinion of the Court.


     In this appeal, we review consecutive terms of incarceration imposed on

defendant William T. Liepe. Defendant was convicted of one count of first-
                                      1
degree aggravated manslaughter,  N.J.S.A. 2C:11-4(a); two counts of second-

degree aggravated assault, N.J.SA. 2C:12-1(b)(1); two counts of third-degree

assault by auto,  N.J.S.A. 2C:12-1(c)(2); and one count of fourth-degree assault

by auto,  N.J.S.A. 2C:12-1(c)(1). The convictions arose from a motor-vehicle

accident in which defendant, driving while intoxicated, collided with another

vehicle from behind and propelled it into oncoming traffic, causing a second

collision. The accident killed one child, permanently paralyzed another child,

seriously injured the driver of the car struck by defendant’s car, and injured a

passenger in the vehicle that was traveling in the opposite lane.

      After a jury convicted defendant, the trial court imposed three

consecutive terms of imprisonment: a twenty-year term for aggravated

manslaughter; a seven-year term for one count of aggravated assault; and a

five-year term for another count of aggravated assault. Defendant was

sentenced to an aggregate term of thirty-two years’ incarceration, with a parole

ineligibility period of twenty-seven years.

      Defendant appealed. The Appellate Division affirmed defendant’s

convictions but vacated his sentence and remanded for resentencing. State v.

Liepe,  453 N.J. Super. 126, 142 (App. Div. 2018). It held that the trial court

abused its discretion in imposing consecutive terms and that defendant’s




                                        2
aggregate sentence shocked the judicial conscience. Id. at 135-41. We

granted the State’s petition for certification.

      We hold that the trial court properly applied the factors identified in

State v. Yarbough,  100 N.J. 627 (1985), for the imposition of consecutive

sentences, and that defendant’s sentence is consistent with the principles stated

in State v. Carey,  168 N.J. 413 (2001). We do not share the Appellate

Division’s view that the trial court misapplied those principles, or that

defendant’s sentence shocks the judicial conscience. Accordingly, we reverse

the Appellate Division’s judgment and reinstate the sentence that the trial court

imposed.

                                         I.

                                         A.

      We derive our summary of the facts from the record of defendant’s trial

and sentencing.

      On the morning of April 10, 2011, defendant, then fifty-eight years old,

drove his Ford Explorer to a bar in Egg Harbor City, where he drank two

beers. He proceeded to a second location, unidentified in the record, and drank

between four and eight additional beers.

      At approximately 1:00 p.m., defendant drove south on Cologne Avenue

in Mays Landing. Ahead of defendant’s car in the southbound lane was a


                                         3
Honda Accord driven by a thirty-five-year-old man, M.G., who was driving his

eleven-year-old son, M.J.G., and a nine-year-old family friend, R.S., to a

softball game. The older boy, M.J.G., was in the front passenger seat of the

Honda Accord, and the younger boy, R.S., was in the back seat of the car.

          M.G. intended to take a left turn from Cologne Avenue into the driveway

of the softball field, but he paused before turning because of traffic in the

opposite lane. According to a statement that he later gave to a police officer,

defendant briefly took his eyes off the road to look at the softball field.

Defendant’s Ford Explorer, traveling at about forty-five miles per hour,

collided with the rear of M.G.’s Honda Accord, sending the Honda into the

northbound lane. There, the Honda was struck by a Cadillac Escalade driven

by a woman who was taking her mother and her two children, ages fifteen and

two, on a shopping trip. The second collision sent M.G.’s car into the parking

lot of the softball field. Defendant’s car traveled off the road and crashed into

a tree.

          The accident killed R.S., the nine-year-old passenger in M.G.’s car. The

eleven-year-old passenger, M.J.G., was permanently paralyzed from the waist

down as a result of the accident, and is confined to a wheelchair. Because of

the injuries that he sustained in the accident, M.J.G. will require continuous

medical care for the rest of his life.


                                          4
      M.G. also sustained very serious injuries. He broke five vertebrae, all of

his ribs, his collarbone, and his shoulder blade. He shattered his pelvis,

suffered a collapsed lung, injured his diaphragm, and sustained damage to his

spleen that required a splenectomy. During a forty-five day hospitalization at

a trauma center, M.G. underwent five surgeries and was for a time in a

medically induced coma. When M.G. left the hospital, he was not yet

ambulatory. He was eventually able to walk with a cane after an extended stay

in a rehabilitation facility. M.G. has a metal plate and four screws in his neck,

a metal rod in his back, and metal implants in his pelvis.

      The driver of the Cadillac and her children were unharmed in the

accident; however, the driver’s mother, R.V., tore her rotator cuff and

sustained back and neck injuries that continued to cause pain at the time of her

testimony at defendant’s trial.

                                       B.

                                        1.

      Defendant was indicted for first-degree aggravated manslaughter 1 and

second-degree vehicular homicide, based on the death of R.S. He was also


1
  The trial court granted defendant’s motion to dismiss the first-degree
aggravated manslaughter count of his indictment on the grounds that the State
failed to present evidence of defendant’s recklessness, other than evidence of
defendant’s intoxication. The State presented additional evidence to a second
grand jury, which indicted defendant for the same offenses, but the trial court
                                        5
charged with second-degree aggravated assault and third-degree assault by

auto, both arising from the injuries to M.G.; second-degree aggravated assault

and third-degree assault by auto, both arising from the injuries to M.J.G.; and

fourth-degree assault by auto, arising from the injuries to R.V.2

      Defendant was tried before a jury. The State presented the testimony of

law enforcement officers, medical professionals, witnesses to the April 10,

2011 accident, and an employee at the bar where defendant drank beer on the

morning of the accident. It offered opinion testimony by experts in accident

reconstruction, pharmacology, and toxicology. The State presented evidence

that defendant’s blood alcohol content (BAC) was .192 when a blood sample

was taken from him approximately one hour and fifteen minutes after the

accident. Its expert toxicologist estimated that at the time of the accident,

defendant’s BAC was approximately .207.

      The jury convicted defendant of all charges.


again dismissed the aggravated manslaughter count. Although the Appellate
Division denied the State’s motion for leave to appeal, this Court granted leave
to appeal and summarily remanded the matter to the Appellate Division for its
consideration of the motion. The Appellate Division then reinstated the
aggravated manslaughter charge.
2
  Defendant received summonses for five motor-vehicle offenses: (1) reckless
driving,  N.J.S.A. 39:4-96; (2) driving while intoxicated,  N.J.S.A. 39:4-50; (3)
careless driving,  N.J.S.A. 39:4-97; (4) failure to wear a seatbelt,  N.J.S.A.
39:12-15; and (5) possession of an open container of alcohol in a motor
vehicle,  N.J.S.A. 39:4-51b.
                                        6
                                         2.

        After merger of two of defendant’s offenses, the trial court sentenced

defendant for one count of first-degree aggravated manslaughter, two counts of

second-degree aggravated assault, and one count of fourth-degree assault by

auto.

        The trial court considered the aggravating and mitigating factors. It

found aggravating factor two,  N.J.S.A. 2C:44-1(a)(2) (“[t]he gravity and

seriousness of harm inflicted on the victim”), and afforded it “substantial

weight” with respect to the two counts of second-degree aggravated assault,

citing both M.G.’s and M.J.G.’s serious injuries, as well as M.J.G.’s life-

altering permanent injury. The trial court found aggravating factor three,

 N.J.S.A. 2C:44-1(a)(3) (“[t]he risk that the defendant will commit another

offense”), due to defendant’s “poor driving record,”3 as well as his history of

alcohol abuse, but afforded that factor “only slight weight.” Finally, the trial

court found aggravating factor nine,  N.J.S.A. 2C:44-1(a)(9) (“[t]he need for

deterring the defendant and others from violating the law”), relying on both




3
  Defendant was convicted in 1977 of driving while intoxicated. His driving
record also revealed five prior accidents, including one in which he left the
scene, and two license suspensions. Defendant’s other motor vehicle offenses
included stop sign violations, speeding, unsafe operation of a motor vehicle,
and obstruction of the passage of another vehicle.
                                         7
general and specific deterrence, but viewing general deterrence to be the more

compelling concern in this case.

      Noting defendant’s lack of prior criminal offenses and his age -- he was

sixty-two years old at sentencing -- the trial court found mitigating factor

seven,  N.J.S.A. 2C:44-1(b)(7) (“[t]he defendant has no history of prior

delinquency or criminal activity or has led a law-abiding life for a substantial

period of time before the commission of the present offense”). The court gave

that mitigating factor only moderate weight, however, due to defendant’s

history of motor vehicle violations. The court declined defendant’s request

that it also find mitigating factor two,  N.J.S.A. 2C:44-1(b)(2) (“[t]he defendant

did not contemplate that his conduct would cause or threaten serious harm”),

and mitigating factor ten,  N.J.S.A. 2C:44-1(b)(10) (“[t]he defendant is

particularly likely to respond affirmatively to probationary treatment”). The

trial court concluded that the aggravating factors outweighed the mitigating

factors.

      Citing  N.J.S.A. 2C:44-5, Yarbough,  100 N.J. at 643-44, and Carey,  168 N.J. at 427-31, the trial court addressed the question of whether defendant’s

terms of incarceration for his individual offenses should run concurrently or

consecutively to one another. The court cited several of the factors set forth in

Yarbough, including the factor that the crimes “involve[] multiple victims.”


                                        8
 100 N.J. at 644. It relied on Carey for the principle that crimes such as the one

at issue here -- involving multiple deaths or seriously injured victims --

“represent especially suitable circumstances for the imposition of consecutive

sentences.” See  168 N.J. at 428. The trial court cited the Court’s holding in

Carey that the “multiple victims” factor is “entitled to great weight and

ordinarily should result in the imposition of at least two consecutive terms.”

(citing id. at 429). It reasoned:

            In this case, there are four victims. In terms of the
            gravity of harm inflicted, two of them suffered the
            worst consequences imaginable. [R.S.] lost his life,
            [M.J.G.] faces life in a wheelchair. Certainly, any sense
            of justice would require that the offense involving
            [M.J.G.] should receive a sentence consecutive to the
            sentence imposed for the death of [R.S.] However, the
            injuries suffered by [M.G.] are also extremely serious.
            As indicated, requiring several weeks of a hospital stay,
            numerous surgeries, he likely will not fully recover.
            Presently walks with the aid of a cane and limp. In this
            court’s view, the sentence imposed for the offense
            against him also must be consecutive in order to
            accomplish accountability for the entire gravamen of
            the results of defendant’s conduct.

      The court accordingly found that defendant should be sentenced to

consecutive sentences for his aggravated manslaughter conviction and his two

aggravated assault convictions. It decided to impose a concurrent sentence for

defendant’s conviction of fourth-degree assault by auto, in which the victim,

R.V., was less seriously injured than M.G. or M.J.G.

                                        9
      The trial court stated that it had considered defendant’s age and his

appeal “that the court not impose a sentence which would amount to one of

death while in prison.” It acknowledged that it was required to consider the

effect of the eighty-five percent parole disqualifier prescribed by the No Early

Release Act,  N.J.S.A. 2C:43-7.2 (NERA). The court noted, however, that

although it was mindful of defendant’s age, its goal was “to impose an

appropriate sentence for the crimes committed and not one designed to assure

his release prior to the end of his life.”

      The trial court sentenced defendant to three consecutive terms: a term of

twenty years’ imprisonment for first-degree aggravated manslaughter; a term

of seven years’ imprisonment for the count of second-degree aggravated

assault in which the victim was M.J.G.; and a term of five years’ imprisonment

for the count of second-degree aggravated assault in which the victim was

M.G. Each of the three terms was subject to NERA’s eighty-five percent

period of parole ineligibility. For defendant’s conviction of fourth-degree

assault by auto, the court imposed a term of one year’s imprisonment to be

served concurrently with defendant’s other terms of incarceration.

      Accordingly, defendant’s aggregate sentence was thirty-two years’

incarceration with a parole ineligibility period of twenty-seven years.




                                             10
                                        3.

      Defendant appealed his convictions and sentence. The Appellate

Division affirmed defendant’s convictions, but vacated the trial court’s

sentencing determination and remanded for resentencing. Liepe,  453 N.J.

Super. at 135-41.

      The Appellate Division observed that by virtue of defendant’s

consecutive sentences, he faced up to thirty-two years in jail and would be

ineligible for parole until he reached the age of eighty-nine. Id. at 135. It

considered that sentence “shocking to the judicial conscience” and opined that

the sentence was “based on the judge’s misunderstanding of applicable legal

principles about when consecutive terms are warranted.” Id. at 133.

      The Appellate Division acknowledged that in Carey, the Court stated

that when an offender’s use of a motor vehicle causes harm to multiple

victims, the sentencing court should “ordinarily” impose consecutive terms.

Id. at 135-36 (quoting Carey,  168 N.J. at 429-30). It urged sentencing courts

not to “assume from this statement that there exists a presumption in favor of

consecutive terms.” Id. at 136. The Appellate Division “discern[ed] from the

[trial] judge’s decision to impose consecutive terms that he believed Carey

required consecutive terms -- a conclusion the Court expressly rejected” in

Carey. Ibid.


                                        11
       The Appellate Division also construed the holding of Carey to be limited

to cases in which a defendant’s conduct killed more than one victim, and thus

determined Carey to be inapplicable to a single-fatality case such as this. Id.

at 140-41. It considered this case to present less egregious circumstances than

did Carey, in which the defendant “revealed a conscious disregard for societal

norms and an enhancement of the danger generated by his intoxication.” Id. at

138.

       The Appellate Division stated that defendant’s sentence “has not been

shown to be in accord with any other sentence imposed in similar

circumstances” and opined that this disparity impairs “the overarching

Yarbough goal that there be uniformity in sentencing.” Id. at 142. In support

of that contention, the Appellate Division attached an appendix in which it

“synopsized all available post-Carey decisions -- some reported, most

unreported -- identifying sentences imposed in multiple-victim vehicular

homicide cases.” Id. at 139 n.5, 142-45.

                                        4.

       We granted the State’s petition for certification.  235 N.J. 295 (2018).

We denied defendant’s cross-petition for certification, in which he challenged

the Appellate Division’s decision affirming his conviction.  235 N.J. 211

(2018).


                                       12
                                        II.

                                       A.

      The State urges the Court to reinstate the sentence that the trial court

imposed. It argues that in Carey, the Court prescribed a presumption in favor

of consecutive sentences where an intoxicated driver causes multiple fatalities

or injuries. The State observes that the trial court did not impose the

maximum term for any of defendant’s offenses and properly sought to impose

a fair sentence for defendant’s crimes. The State contends that the Appellate

Division unfairly faulted the trial judge for failing to compare defendant’s

sentence to sentences imposed on other defendants and stresses that the cases

cited in the Appellate Division’s appendix involved less serious crimes than

those at issue here.

                                        B.

      Defendant counters that his sentence shocks the judicial conscience

because his conduct was no more serious than that of similarly situated

defendants sentenced to more lenient terms. He contends that the facts of this

case do not support a conviction for aggravated manslaughter and that the trial

court should therefore have imposed no consecutive sentences. Defendant

asserts that the trial court misconstrued Yarbough to mandate consecutive

sentences in this case and cites the dissent in Yarbough for the proposition that


                                       13
consecutive sentences are best used when the offender has committed offenses

in a series of separate, unrelated episodes.

                                       III.

                                        A.

      When it reviews a trial court’s sentencing determination, an appellate

court must not “substitute its judgment for that of the sentencing court.” State

v. Fuentes,  217 N.J. 57, 70 (2014); State v. Lawless,  214 N.J. 594, 606 (2013).

As the Court observed in State v. Roth, the “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.”  95 N.J. 334, 365 (1984) (quoting

People v. Cox,  396 N.E.2d 59, 65 (Ill. App. Ct. 1979)).

      Appellate review is thus limited to consideration of:

            (1) whether guidelines for sentencing established by the
            Legislature or by the courts were violated; (2) whether
            the aggravating and mitigating factors found by the
            sentencing court were based on competent credible
            evidence in the record; and (3) whether the sentence
            was nevertheless “clearly unreasonable so as to shock
            the judicial conscience.”

            [State v. McGuire,  419 N.J. Super. 88, 158 (App. Div.
            2011) (quoting Roth,  95 N.J. at 365-66).]



                                        14
                                       B.

                                        1.

      The sentencing provisions of the New Jersey Code of Criminal Justice

are “based on notions of proportionality and desert,” Carey,  168 N.J. at 422

(quoting Roth,  95 N.J. at 355), and “focus[] on the gravity of the offense,”

ibid. As the Court observed in Yarbough, “[t]he Code requires the sentencing

court to look at the individual offender in balancing the defined aggravating

and mitigating factors (including the defendant’s prior record, cooperation, or

the likelihood of further criminal conduct) to determine the range of the

sentence, a parole disqualifier, or an extended term.”  100 N.J. at 636 (citing

 N.J.S.A. 2C:43-6(a), (b); 2C:43-7; 2C:44-1(f)).

      The Court noted in Yarbough, however, that “[t]he Code does not define

with comparable precision the standards that shall guide sentencing courts in

imposing sentences of imprisonment for more than one offense.” Ibid. “With

certain narrow exceptions,” ibid. (citing  N.J.S.A. 2C:44-5(b)(3), (c), (h)),

“[t]he Code simply states that 'multiple sentences shall run concurrently or

consecutively as the court determines at the time of sentence,’” Carey,  168 N.J. at 422 (quoting  N.J.S.A. 2C:44-5(a)).

      This Court “recognized early on that investing unbridled discretion in

sentencing judges would inevitably lead to a lack of sentencing uniformity.”


                                       15
Ibid. Invoking legislative principles expressed in the Code, the Court in

Yarbough sought to provide practical guidance to trial courts determining

whether to impose concurrent or consecutive terms of incarceration.  100 N.J.

at 636-37. It observed that the Legislature premised the Code on “the concept

that punishment of crime [should] be based primarily on principles of deserved

punishment in proportion to the offense and not rehabilitative potential, and

that in dispensing that punishment, our judicial system should attain a

predictable degree of uniformity.” Ibid.

      To further the Legislature’s goals, the Court identified the following

guidelines:

              (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, rather than being committed


                                        16
                   so closely in time and place as to indicate a single
                   period of aberrant behavior;

                   (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; [and]

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

            [Yarbough,  100 N.J. at 643-44.]4

      The Court noted in Yarbough that a sentencing court “will normally

make an overall evaluation of the punishment for the several offenses

involved,” and that the trial court’s “goal is not an exercise 'whose object is to

find the maximum possible period of incarceration for a convicted defendant.’”

Id. at 646 (quoting People v. Price,  199 Cal. Rptr. 99, 109 (Ct. App. 1984)). It

“recognize[d] that even within the general parameters that we have announced

there are cases so extreme and so extraordinary” that they may warrant



4
  A sixth factor, which imposed “an overall outer limit on the cumulation of
consecutive sentences for multiple offenses not to exceed the sum of the
longest terms,” was eliminated by the Legislature in a 1993 amendment to the
statute addressing concurrent and consecutive terms. L. 1993, c. 223, § 1; see
 N.J.S.A. 2C:44-5(a) (providing that “[t]here shall be no overall outer limit on
the cumulation of consecutive sentences for multiple offenses”); see also
Carey,  168 N.J. at 423 n.1.

                                        17
“deviation from the guidelines.” Id. at 647. Nonetheless, the Court

encouraged courts sentencing defendants for multiple offenses to “strive for

some degree of proportionality.” Ibid.

                                         2.

      In Carey, the Court reviewed the sentence of a defendant who was

convicted of two counts of vehicular homicide, contrary to  N.J.S.A. 2C:11-

5(b)(1), a second-degree offense, and two counts of fourth-degree assault by

auto, contrary to  N.J.S.A. 2C:12-1(c).  168 N.J. at 420. The defendant,

intoxicated and traveling at an excessive speed, drove his pickup truck into

oncoming traffic and collided with a car. Id. at 419-20. Two young people --

one a passenger in the defendant’s car and one a passenger in the car that he

struck -- died in the accident; the driver of the other car and another passenger

in the defendant’s car were seriously injured. Id. at 420. The trial court

sentenced the Carey defendant to two consecutive seven-year terms of

incarceration for the two counts of vehicular homicide, and two concurrent

one-year terms of incarceration, which also ran concurrently to defendant’s

terms for vehicular homicide, for the two assault by auto convictions. Id. at

420-21.




                                       18
      The Appellate Division affirmed defendant’s convictions but vacated his

consecutive sentences for the two counts of vehicular homicide and remanded

for the imposition of concurrent sentences for those offenses. Id. at 421.

      This Court reversed the Appellate Division’s judgment in Carey and

reinstated the consecutive terms that the trial court had imposed. Id. at 431.

The Court viewed the third Yarbough guideline, “the facts relating to the

crimes,” to “provide[] the clearest guidance to sentencing courts faced with a

choice between concurrent and consecutive sentences.” Id. at 423. The Court

reiterated that the five “facts relating to the crimes” within that guideline

“should be applied qualitatively, not quantitatively” and held that,

consequently, “a sentencing court may impose consecutive sentences even

though a majority of the Yarbough factors support concurrent sentences.” Id.

at 427-28. The Court required a judge conducting a Yarbough analysis to

“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.’” Id. at 428 (quoting People v.

Leung,  7 Cal. Rptr. 2d 290, 303 (Ct. App. 1992)).

      Applying that principle to the case before it, the Court concluded that

“[c]rimes involving multiple deaths or victims who have sustained serious

bodily injuries represent especially suitable circumstances for the imposition


                                        19
of consecutive sentences.” Ibid. (citing, by way of example, State v. J.G.,  261 N.J. Super. 409, 426 (App. Div. 1993), and State v. Russo,  243 N.J. Super.
 383, 413 (App. Div. 1990)). It reasoned that “[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.” Id. at 429 (alteration in

original) (quoting Leung,  7 Cal. Rptr. 2d at 303-04). The Court held that when

a judge sentences a defendant in a vehicular homicide case, “the multiple-

victims factor is entitled to great weight and should ordinarily result in the

imposition of at least two consecutive terms when multiple deaths or serious

bodily injuries have been inflicted upon multiple victims by the defendant.”

Id. at 429-30.

      The Court concluded that the defendant’s conduct in Carey, which

resulted in two deaths and inflicted serious injuries on two other individuals,

was much more damaging than conduct that kills or injures only one person,

id. at 428-29, and that the trial court did not abuse its discretion when it

imposed consecutive sentences, id. at 430-31. The Court recognized that the

impact of multiple victims on sentencing “resonates most clearly in cases in

which a perpetrator intentionally targets multiple victims” but applied th at

sentencing principle to “cases in which, as here, the defendant does not intend




                                        20
to harm multiple victims but it is foreseeable that his or her reckless conduct

will result in multiple victims.” Id. at 429.

      State v. Molina, a companion case to Carey, similarly involved an

alcohol-related accident in which a car driven by the defendant, whose BAC was

estimated to be .085, veered into oncoming traffic and collided with a vehicle in

the opposite lane.  168 N.J. 436, 438-40 (2001). The accident killed the other

driver and a passenger in that driver’s vehicle, and injured two other passengers

in that vehicle. Id. at 439. The defendant was convicted of two counts of

vehicular homicide, elevated to a second-degree crime prior to defendant’s

sentencing, and was sentenced to two consecutive five-year terms of

incarceration. Id. at 440-41. The Appellate Division affirmed the defendant’s

convictions and sentence. Id. at 441.

      The Court affirmed the Appellate Division’s judgment. Id. at 442. It

determined that although the trial court had inadequately explained its

reasoning, it did not abuse its discretion in premising consecutive sentences

entirely on the fact that the defendant had killed multiple victims. Id. at 442-

43. The Court reiterated in Molina the core principle of Carey: by virtue of

their impact on multiple lives, crimes involving two or more victims are

particularly suited for the imposition of consecutive sentences, so that “the

multiple-victims factor is entitled to great weight and should ordinarily result


                                        21
in the imposition of at least two consecutive terms.” Id. at 442 (quoting Carey,

 168 N.J. at 429-30).

                                       3.

      In this appeal, the Appellate Division held that our decisions in Carey

and Molina did not establish a presumption in favor of consecutive sentences

in cases involving alcohol-related accidents in which multiple victims are

killed or seriously injured. See Liepe,  453 N.J. Super. at 135-36. We agree.5

      A presumption “is a conclusion that the law directs must be drawn,” or a

“mandatory inference that discharges the burden of producing evidence as to a

fact (the presumed fact) when another fact (the basic fact) has been

established.” Shim v. Rutgers,  191 N.J. 374, 386 (2007). This Court has

adopted presumptions in clear and unmistakable language in various settings.

See, e.g., In re Keri,  181 N.J. 50, 53, 63 (2004) (“establish[ing] a presumption

in favor of spend-down proposals” permitting “self-sufficient adult children



5
  We accordingly disagree with the comment made by the Appellate Division
in another case, in which it opined that, in Carey, the Court created a
“rebuttable presumption” that a trial court should impose consecutive
sentences “when a drunken driver’s use of a motor vehicle results in multiple
victims.” State v. Locane,  454 N.J. Super. 98, 131-32 (App. Div. 2018). We
note that in Locane, the question as to whether the defendant’s terms of
incarceration should be consecutive or concurrent was moot at the time of the
Appellate Division’s decision because the defendant in that case had
“completed service of [her] eighteen-month sentence” for one of her offenses
and was “not on parole for that offense.” Id. at 131.
                                       22
who serve as their incompetent parents’ legal guardians” to “transfer to

themselves all or part of their parents’ assets in order to hasten their parents’

eligibility for Medicaid benefits”); Coffman v. Keene Corp.,  133 N.J. 581, 603

(1993) (“[W]e now hold that . . . in a product-liability case based on a failure

to warn, the plaintiff should be afforded the use of the presumption that he o r

she would have followed an adequate warning had one been provided.”).

      There is no such language in  N.J.S.A. 2C:44-5 or our case law. When

the Court held in Carey that, in vehicular homicide cases in which more than

one victim has been killed or seriously injured, “the multiple-victims factor”

should “ordinarily result in the imposition of at least two consecutive terms ,”

 168 N.J. at 429-30, it did not impose a presumption in favor of consecutive

terms. It simply observed that when a sentencing court compares the harm

inflicted by intoxicated driving in the multiple-victim setting with the harm

that would have resulted from the offense were there only a single victim, it is

likely to conclude that the harm in the former setting is “distinctively worse”

than that in the latter. See id. at 428. As the Court did “not adopt a per se

rule” of consecutive sentences in cases such as this, id. at 419, it adopted no

presumption governing such cases. Like any Yarbough analysis, the

sentencing court’s determination regarding consecutive and concurrent terms




                                        23
in the vehicular homicide setting turns on a careful evaluation of the specific

case.

                                          C.

        Nothing in the trial court’s determination in this case suggests that it

reached its decision through the application of a presumption, contrary to the

Appellate Division’s suggestion. Liepe,  453 N.J. Super. at 135-36. In the

court’s detailed consideration of the facts before it, and its citation to the

language of Carey, there was no mention of a presumption. We detect in the

trial court’s analysis no misunderstanding of the governing principles. See id.

at 133.

        Consistent with Yarbough and Carey, the trial court acted within its

discretion when it found that the injuries inflicted on multiple victims in this

case warranted consecutive sentences. As Carey mandated, the trial court

carefully considered whether the accident’s impact on multiple victims

“renders the collective group of offenses distinctively worse” than those

offenses would be had defendant killed or injured only one individual. See

 168 N.J. at 428. The court deemed the impact of defendant’s conduct on both

R.S. and M.J.G. to be the “worst consequences imaginable,” and observed that

the impact of defendant’s conduct on M.G. to be “extremely serious”: a child,

R.S., was killed; another child, M.J.G., was permanently paralyzed; and M.G.


                                          24
was seriously and permanently injured. To the trial court, the imposition of

concurrent sentences for defendant’s offenses would not ensure accountability.

      The trial court considered the fairness of a thirty-two-year aggregate

NERA sentence, taking into account defendant’s age. See State v. Cuff, ___

N.J. ___ (2019) (slip op. at 37-38) (reminding trial courts to consider the

fairness of an aggregate sentence); State v. Abdullah,  184 N.J. 497, 515 (2005)

(same). It properly viewed its primary obligation, however, not to ensure that

defendant would live long enough to be released on parole, but to craft a

sentence warranted by the offenses.

      We find no “deviation from [the Code’s sentencing] objectives, in view

of the standards and criteria therein set forth,” in the trial court’s

determination, and accordingly we find no error. See Roth,  95 N.J. at 365

(quoting Cox,  396 N.E 2d at 65). A court, acting within its broad discretion,

could have imposed a concurrent term of incarceration for defendant’s

aggravated manslaughter conviction or for one or both of his convictions of

aggravated assault, but it was not an abuse of discretion to impose consecutive

terms in this case.

      Nor do we find the sentence imposed by the trial court to shock the

judicial conscience.




                                         25
      The Appellate Division partially premised its conclusion that the trial

court’s sentence shocked the judicial conscience on a comparison between

defendant’s sentence and sentences recounted in sixteen Appellate Division

decisions. Liepe,  453 N.J. Super. at 138-39. It suggested that the sentence

was an abuse of discretion because it was not “shown to be in accord” with

sentences imposed in similar circumstances. Id. at 142.

      This Court, however, has never imposed on a trial court the obligation to

demonstrate that a sentence comports with sentences imposed by other courts

in similar cases. See  N.J.S.A. 2C:44-5; see also Yarbough,  100 N.J. at 643-

44.6 The Yarbough guidelines promote proportionality not by a comparative

analysis of the sentencing practices of different courts, but by focusing the t rial

court on the “facts relating to” the defendant’s crimes. Carey,  168 N.J. at 423;

see also Yarbough,  100 N.J. at 643-44. Here, the trial court properly focused

on the case before it, and on the devastating impact of defendant’s crimes.




6
   Indeed, it would be impractical for a sentencing court to conduct a fair and
comprehensive survey of sentences imposed in matters similar to the case
before it. Many sentences are never reported in appellate decisions, and there
is no indication that those that are reported provide a representative sample of
sentencing practices throughout the State. Even sentences that happen to be
reported in appellate opinions may not provide a sentencing court with a
detailed understanding of the defendant’s crimes or the trial court’s application
of the Yarbough factors in that case.
                                        26
      We recognize, as the trial court recognized, that defendant may spend

the rest of his life in jail. We agree with the trial court, however, that its task

was not to ensure defendant’s eventual release, but to devise a sentence

commensurate with defendant’s crimes.

      Defendant’s consecutive terms do not violate statutory or judicial

guidelines for sentencing, and they do not shock the judicial conscience.

There was no abuse of the trial court’s sentencing discretion in this case.

                                        IV.

      The judgment of the Appellate Division is reversed, and the sentence

imposed by the trial court is reinstated.



    CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
PATTERSON’S opinion.




                                         27