SENTENCINGSENTENCINGSENTENCINGSENTENCINGSENTENCING
(See also GUILTY PLEAS & PLEA
BARGAINING, INTENSIVE SUPERVISION
PROGRAM, MERGER, PRISONERS &
PAROLE, PROBATION, RESTITUTION,
SEXUAL OFFENSES, this Digest)
I. FACTORS TO BE CONSIDERED AT
SENTENCING
A. Aggravating and Mitigating Factors - N.J.S.A. 2C:44-
1a,b
- Generally
The trial courts must make their findings of sentencing
factors explicit, identifying the aggravating and mitigating
factors and describing the balance of those factors, so that
the appellate courts can determine in Code cases whether
deviations from the presumptive terms were warranted for
particular offenders and in CDS cases whether sentencing
discretion was soundly exercised. State v. Sainz, 107 N.J.
283 (1987); State v. Kruse, 105 N.J. 354, 360 (1987).
Sentences imposed upon defendants, who plead guilty
as part of a plea agreement, must still be within the
sentencing guidelines, and the aggravating and mitigating
factors must still have support in the record. State v. Sainz,
107 N.J. at 292.
When a trial court imposes a sentence based on
defendant’s guilty plea, the defendant’s admissions or
factual version need not be the sole source of information
for the Court’s sentencing decision. State v. Sainz, 107 N.J.
at 293. The court may look to other evidence in the record
when making such determinations, and should consider
“the whole person,” and all the circumstances surrounding
the commission of the crime. Id.
A reviewing court is prohibited from considering
rejected plea offers for purposes of ascertaining the
propriety of a sentence imposed following trial. State v.
Pennington, 154 N.J. 344, 363 (1998).
The aggravating and mitigating factors found by the
trial court cannot be generalized factors but must be based
upon individual circumstances that distinguish this
particular offense from other crimes of the same nature.
State v. Yarbough, 100 N.J. 627 (1985), cert. denied 475
U.S. 1014 (1986); State v. Reed, 211 N.J. Super. 177, 188-
189 (App. Div. 1986), certif. denied 110 N.J. 508 (1988);
State v. Pavin, 202 N.J. Super. 255 (App. Div. 1985); State
v. Martelli, 201 N.J. Super. 378, 386 (App. Div. 1985);
State v. Link, 197 N.J. Super. 615, 620 (App. Div. 1984),
certif. denied 101 N.J. 234 (1985).Trial judge, who stated there were no mitigating
circumstances but who recited aggravating circumstances
and presented detailed analysis of crime, defendant and
reason for sentencing, substantially complied with
sentencing statute. N.J.S.A. 2C:43-6(b); State v. Porter,
210 N.J. Super. 383, 396-397 (App. Div. 1986), certif.
denied 105 N.J. 556 (1986).Aggravating and mitigating factors are not to be offset
one to one, but each factor must be given appropriate
weight. State v. C.H., 264 N.J. Super. 112, 141 (App. Div.
1993), certif. denied 134 N.J. 479 (1993).Trial court could consider restrictions placed on
defendant’s liberty during lengthy period preceding her
plea in determining what is fair sentence under all the
circumstances. State v. Mirakaj, 268 N.J. Super. 48, 53
(App. Div. 1993) (defendant stayed in convent as
condition of bail); State v. Christensen, 270 N.J. Super. 650
(App. Div. 1994) (defendant mistakenly ordered to
commence serving probationary sentence, which had been
stayed pending State’s successful appeal of sentence).The Code does not limit a sentencing judge to the 13
specific factors in N.J.S.A. 2C:44-1a. Id. See, e.g., State v.
Maquire, 84 N.J. 508, 532 (1980).The sentencing principles of Roth and the aggravating
and mitigating factors in N.J.S.A. 2C:44-1 apply to
resentencings on violations of probation. State v.
Townsend, 222 N.J. Super. 273, 281 (App. Div. 1988).In State v. LeSane, 227 N.J. Super. 276 (Law Div.
1987), it was held that municipal court judges must state
reasons for the imposition of sentence and must apply the
presumption of non-incarceration to individuals not
previously convicted of an offense. R. 7:4-6(c); R. 3:21-
4(c). Cf. State v. Walsh, 236 N.J. Super. 151, 156 (Law
Div.) (motor vehicle offenses are not crimes so aggravating- mitigating analysis is not required by court imposing
sentence).
2. Double Counting of Factors
The trial court cannot rely upon an element of the
offense as either an aggravating or mitigating factor in
order to justify the sentence imposed. State v. Kromphold,
162 N.J. 345, 353-356 (2000); State v. Miller, 108 N.J.
112, 122 (1987); State v. Yarbough, 100 N.J. 627 (1985);