New Jersey Supreme Court Rules Consecutive Sentence

Consecutive Sentence

In State v. Edgar Torres (A-52-19/083676) (Decided May 11, 2021), the Supreme Court of New Jersey held that an explicit statement, explaining the overall fairness of a sentence imposed for multiple offenses in a single proceeding or in multiple sentencing proceedings, is essential to a proper sentencing assessment under State v. Yarbough, 100 N.J. 627 (1985). The state’s highest court further held that the lack of any overall assessment of the fairness of the decision to impose consecutive sentences compelled the reversal of defendant Edgar Torres’ sentence, which would have resulted in keeping him behind bars until he was 102.

Facts of State v. Torres

After defendant Edgar Torres (Torres or defendant) was convicted of three counts of first-degree armed robbery for his role in three robberies, the court sentenced him to forty years’ imprisonment subject to an eighty-five percent parole disqualifier for the first of those convictions and to twenty years in prison for each of the other two convictions. The court ordered the twenty-year sentences to run concurrently to each other and to the forty-year sentence.

After a separate trial, defendant was convicted of first-degree armed robbery and second-degree robbery for his role in two other robberies. Defendant was sentenced to twenty years’ imprisonment for the armed robbery conviction and to ten years’ imprisonment for the second-degree robbery conviction, each subject to parole disqualifiers. The sentencing court imposed those terms consecutively, stating that the factors set forth in Yarbough counseled in favor of consecutive terms because each robbery was a separate offense. Without further elaboration, the court determined that defendant was to serve the aggregate thirty-year sentence consecutively to defendant’s forty-year sentence imposed for the three other robberies.

As to the second sentence, the Appellate Division found that the sentencing court had failed to engage in a careful analysis of either the Yarbough factors or the real-time consequences of defendant’s sentence. It remanded for a new sentencing hearing. On remand, the court concluded that Yarbough required that defendant’s sentences be imposed consecutively to each other and to the prior forty-year sentence. It sentenced defendant to the same aggregate seventy-year sentence subject to an eighty-five percent parole disqualifier. Thus, the court’s sentence denies defendant the opportunity for parole until he reaches 102 years of age. Defendant again appealed his sentence, and the Appellate Division affirmed by summary order.

NJ Supreme Court’s Decision in State v. Torres

The New Jersey Supreme Court reversed. It held that an explanation for the overall fairness of a sentence by the sentencing court is required when imposing consecutive sentences. “Failure to police the fairness of consecutive sentences not only undermines Yarbough’s goal of promoting predictability and uniformity in sentencing, but also risks deviating from the Legislature’s command that the Code be construed so as to ‘safeguard offenders against excessive, disproportionate or arbitrary punishment,’” the court wrote.

As the New Jersey Supreme Court explained, one of the factors under Yarbough requires a sentencing court to place on the record its statement of reasons for the decision to impose consecutive sentences. As explained in State v. Miller, 108 N.J. 112, 122 (1987), the statement should focus “on the fairness of the overall sentence, and the sentencing court should set forth in detail its reasons for concluding that a particular sentence is warranted.”

In this case, the New Jersey Supreme Court determined that the court failed to include an explicit assessment of the overall fairness of imposing the sentence consecutively to defendant’s previously imposed forty-year sentence. As the court explained:

The Yarbough analysis does not rely on ticking off the Yarbough factors. The mere identification of Yarbough factors as present when recounting the facts of defendant’s offenses is no substitute for the required fairness assessment. Here, the lack of any overall assessment of the fairness of the decision to impose defendant’s thirty-year aggregate sentence for the 2006 and 2009 robberies consecutive to his existing forty-year sentence for the 2010 and 2011 robberies compels us to reverse defendant’s sentence and remand for a new resentencing.

In reaching its decision, the New Jersey Supreme Court highlighted the importance of an explicit explanation for the overall fairness of a sentence, in the interest of promoting proportionality for the individual who will serve the punishment. It wrote:

Particularly when imposing a lengthy consecutive sentence — here, multiple maximum sentences on top of an already long sentence — the explanation of the overall fairness of a sentence to be imposed serves to validate a court’s decision by contextualizing the individual sentences’ length, deterrent value, and incapacitation purpose and need. Such explicit considerations and explanations are invaluable to support the choice to impose a consecutive sentence, which will often increase the real time a defendant spends in custody as much as a decision to impose a sentence at the top of the sentencing range for an individual offense among several being imposed.

The New Jersey Supreme Court next turned to the argument that age must be a consideration when a sentencing court decides whether to impose consecutive sentences. “A defendant’s age is doubtlessly among the information that courts should consider when calibrating a fair sentence,” the court wrote. “But age alone cannot drive the outcome. An older defendant who commits a serious crime, for example, cannot rely on age to avoid an otherwise appropriate sentence.” Nonetheless, the court acknowledged that “age is a fact that can and should be in the matrix of information assessed by a

sentencing [judge], even in the deliberation over whether consecutive sentences are a fair and appropriate punishment — proportional for the individual being sentenced.”

The New Jersey Supreme Court also emphasized that the New Jersey Legislature and the New Jersey Criminal Sentencing and Disposition Commission can provide greater clarity for the courts. “We note that the [commission] has completed some of its work, but more remains to be done. To the extent that some arguments advanced in this appeal are policy oriented, they are better addressed to the Legislature and the Sentencing Commission,” the court wrote.

In light of its holding, the New Jersey Supreme Court remanded the case “for meaningful review and re-sentencing utilizing the principles contained in this opinion.”

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