SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2454-01T3
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
NICHOLAS LEBRA, III,
Defendant-Respondent.
____________________________________
STATE OF NEW JERSEY, A-2943-01T3
Plaintiff-Appellant/
Cross-Respondent/Cross-
Appellant,
v.
RONNIE COMEAUX,
Defendant-Respondent/
Cross-Appellant/Cross-
Respondent.
_____________________________________
Submitted January 15, 2003 - Decided February 20, 2003
Before Judges King, Wefing and Wecker.
On appeal from Superior Court of New
Jersey, Law Division, Salem County,
00-03-00096-I (Lebra), 01-6-307-I (Comeaux).
John E. Bergh, Salem County Prosecutor,
attorney for appellant in A-2454-01T3
(Matthew P. Donelson, Assistant Prosecutor,
on the brief).
Sufrin Zucker Steinberg & Wixted, attorneys
for respondent Nicholas Lebra, III (Saul J.
Steinberg, on the brief).
John E. Bergh, Salem County Prosecutor, attorney
for appellant/cross-respondent/cross-appellant in
A-2943-01T3 (Matthew P. Donelson, Assistant
Prosecutor, on the brief).
Peter A. Garcia, Acting Public Defender,
attorney for respondent/cross-appellant/cross-
respondent Ronnie Comeaux (Susan Brody,
Assistant Deputy Public Defender, of counsel
and on the brief).
The opinion of the court was delivered by
WEFING, J.A.D.
These two appeals are from sentences imposed by the same
trial judge for the same offense, vehicular homicide. In State
v. Lebra, A-2454-01, defendant was sentenced to three years on
probation, conditioned on serving 364 days in county jail, and
the State appeals. In State v. Comeaux, A-2943-01, defendant was
sentenced to four years in prison with an 85% period of parole
ineligibility, and both parties appeal. The two matters were
initially argued before us on our excessive sentence calendar; we
ordered them transferred to our regular calendar for briefing of
the issues presented. We now consolidate them for purposes of
this opinion. After reviewing the records in each matter and
considering the arguments, we remand both matters for
resentencing.
I.
On October 23, 1999, shortly before 11:00 p.m., Lebra, then
eighteen years old, was driving on Auburn Road in Pilesgrove
Township. He had three passengers in his car. His speed
exceeded one hundred miles per hour. He lost control of the
vehicle, hit another car and then crashed into a telephone pole.
One of his passengers, his friend, seventeen-year-old Brett
Kooman, died in the crash. Lebra admitted he had been drinking
that evening. A blood alcohol test performed several hours later
showed a blood alcohol level of .079.
Lebra was thereafter indicted for aggravated manslaughter,
a crime of the first degree, N.J.S.A. 2C:11-4a; vehicular
homicide, a crime of the second degree, N.J.S.A. 2C:11-5, and
assault by auto, a crime of the fourth degree, N.J.S.A. 2C:12-1c.
He also received a number of motor vehicle summonses for various
offenses, including driving while intoxicated, reckless driving,
and speeding. As part of the preparation of its case, the State
served an expert's report which, extrapolating from defendant's
.079 blood alcohol reading, concluded that at the time of the
accident, defendant's blood alcohol level was .11, above the
legal limit.
Lebra had no prior involvement with the criminal justice
system, either as a juvenile or an adult. Ultimately he pled
guilty to vehicular homicide. The terms of the plea agreement
called for the State to recommend to the trial court that
defendant be sentenced as if he had committed a crime of the
third degree, rather than one of the second degree. When Lebra
entered his plea, he specifically acknowledged that he understood
"that in all likelihood, there [would] be a period of
incarceration depending upon the arguments at the time of
sentencing . . . there [would] be a New Jersey State Prison
sentence" as a result of his plea. He also acknowledged that his
sentence would be subject to the No Early Release Act, N.J.S.A.
2C:43-7.2 ("NERA").
When Lebra appeared for sentence, however, the trial court
did not impose a period of incarceration in State prison with an
85% period of parole ineligibility. Rather, after reviewing the
presentence report and hearing the argument of counsel, the trial
court sentenced defendant to three years on probation,
conditioned upon serving 364 days in the county jail. It is from
that sentence that the State has appealed. N.J.S.A. 2C:44-1f(2).
Defendant's sentence has been stayed pending this appeal.
II.
On January 29, 2000, twenty-two-year-old Ronnie Comeaux
attended a family reunion in Quinton Township. As he drove home,
he was involved in a front-end collision sometime after 7:00 p.m.
with another car. He had attempted to pass a car on a curve at
a high rate of speed. He lost control of his vehicle and
collided with an oncoming car. His passenger, Abu Gibson, died
in the accident and the occupants of the other car were seriously
injured. Comeaux told police who responded to the accident scene
that he had been drinking beer at the reunion. A blood alcohol
test showed a blood alcohol level of .165 at the time of the
accident.
Comeaux was indicted for aggravated manslaughter, vehicular
homicide, and three counts of fourth-degree aggravated assault.
He also received motor vehicle summonses for driving while
intoxicated, improper passing and reckless driving.
Comeaux had a minimal involvement with the criminal justice
system. As a juvenile, he had been charged with improper
behavior and defiant trespassing but that had been diverted and
there was no adjudication. As an adult, he had been charged with
possession of cocaine but that was downgraded and remanded to the
municipal court. As with Lebra, these were Comeaux's first
indictable charges. Comeaux pled guilty to vehicular homicide
and one count of aggravated assault in return for the State's
agreement to recommend a sentence of five years in prison for
vehicular homicide and a concurrent nine months for aggravated
assault. He further acknowledged that he was to be sentenced in
accordance with NERA. The plea bargain did not call for the
State to recommend that Comeaux be sentenced as a third-degree
offender.
Comeaux was originally scheduled to be sentenced on the same
day as Lebra. The trial court, however, did not impose sentence
that day but rather, based upon the Lebra matter, rejected the
plea bargain and invited the State to make another offer. The
State declined to do so. Thereafter, the trial court indicated
on the record to Comeaux that in return for a plea of guilty, the
trial court would sentence him to four years in prison, subject
to NERA. Defendant agreed. At sentencing, the trial court
sentenced defendant accordingly. Defendant Comeaux has appealed,
arguing that his sentence is so disparate from Lebra's that it
must be adjusted accordingly. State v. Roach,
146 N.J. 208,
cert. denied, Roach v. New Jersey,
519 U.S. 1021,
117 S. Ct. 560,
130 L.Ed.2d 424 (1996). The State has cross-appealed, arguing
that the trial court's actions were improper.
III.
We turn first to the Lebra appeal. After reviewing the
record, we are satisfied that the trial court's action in
sentencing Lebra to a probationary term, conditioned upon serving
364 days in the county jail, was illegal, that the sentence must
be vacated and the matter remanded for resentencing.
Defendant pled guilty to a second-degree crime and the
presumption of imprisonment which attaches to a second-degree
crime remains, even if defendant has pled guilty pursuant to a
plea agreement which calls for defendant to be sentenced as a
third-degree offender. State v. Partusch,
214 N.J. Super. 473,
476 (App. Div. 1987); State v. Rodriguez,
179 N.J. Super. 129,
134-35 (App. Div. 1981). It is settled, moreover, that such
presumption of imprisonment is not satisfied by a term of
imprisonment imposed as a condition of probation under N.J.S.A.
2C:43-2b(2). State v. O'Connor,
105 N.J. 399, 402 (1987). The
Supreme Court has clearly stated that "such a sentence is
invalid." Ibid.
In certain rare instances, a trial court may find that
imprisoning a person for a second-degree crime would be a
"serious injustice," thus overcoming the presumption of
imprisonment. N.J.S.A. 2C:44-1d. As we have noted, "[t]he
standard for the requisite finding of 'serious injustice' is
extremely narrow," State v. Cooke,
345 N.J. Super. 480, 487 (App.
Div. 2001), certif. denied,
171 N.J. 340 (2002), and is met only
in "truly extraordinary and unanticipated" circumstances. State
v. Jarbath,
114 N.J. 394, 406 (1989), (quoting State v. Roth,
95 N.J. 334, 358 (1984)). That the mitigating factors may
substantially outweigh the aggravating factors does not obviate
the presumption of imprisonment. Cook, supra, 345 N.J. Super. at
487. The Supreme Court has stated that only "[r]arely will
general deterrence not be furthered by imprisonment for serious
crimes . . . . To forestall the deterrent effect of
incarceration, the defendant must be idiosyncratic." State v.
Jabbour,
118 N.J. 1, 7 (1990) (citations omitted).
Jarbath, supra, is an excellent illustration of an
"idiosyncratic" defendant for whom incarceration would be a
serious injustice, such that imprisonment is not required.
Defendant in that case was a twenty-one year old woman who was
mentally retarded and had been diagnosed as psychotic. 114 N.J.
at 398. Her nineteen-day-old son died after she twice dropped
him on a coffee table. Ibid. Charged with murder, she pled
guilty to second-degree manslaughter and was sentenced to an
indeterminate term not to exceed seven years. Ibid. On appeal,
this court reversed her sentence and sentenced her as a third-
degree offender to five years on probation, with certain
specified conditions. Id. at 399. After granting the State's
petition for certification, the Supreme Court affirmed. Ibid.
The Court noted the sentencing philosophy of the Code and
its goal of establishing uniformity in sentencing by "structuring
and standardizing the sentencing courts' discretion." Id. at
400. The Court analyzed in detail the aggravating and mitigating
factors that had been found by the trial court and agreed with
this court's conclusion that those factors were not supported by
the record. Id. at 406. Turning to this court's determination
that a probationary sentence was appropriate, the Court noted
that considering whether there is a serious injustice, such that
a term of imprisonment is not required, "necessarily directs
attention to the character of the defendant." Id. at 407. The
shift in focus from the offense to the character and condition of
the defendant is "to avoid the imposition of a sentence that goes
beyond the central Code purpose of imposing proportionate
sentences, that is, sentences that fit the particular crime."
Id. at 408. The Court agreed that defendant's inability to
understand that her actions deserved a prison term, as well as
the overwhelming impact upon her of incarceration, beyond what
the usual inmate might experience, warranted a finding that
imprisoning defendant would work a serious injustice.
In Jabbour, on the other hand, the Court set aside a
probationary sentence for defendant who had pled guilty to
second-degree sexual assault upon a four-year-old girl. Jabbour,
supra, 118 N.J. at 3. The trial court had characterized
defendant "as a sad, sorry, weak individual in need of
psychiatric attention . . . [for whom] [a] period of
incarceration will carry a high risk of his never overcoming his
emotional difficulties . . . ." Id. at 4. Defendant's emotional
problems, however, did not make him idiosyncratic so as to
justify dispensing with a period of incarceration. The Court
stated, "[d]efendants who commit serious crimes should expect to
spend time in prison." Id. at 8.
The Court recently reiterated its views in this regard,
noting that the judicial power to find a serious injustice and,
thus, override the presumption of imprisonment "is exercisable
only in extraordinary circumstances, when 'the human cost of said
deterrence . . . is too great.'" State v. Soricelli,
156 N.J. 525, 530 (1997) (quoting State v. Roth, supra, 95 N.J. at 358).
A defendant cannot be characterized as idiosyncratic for purposes
of N.J.S.A. 2C:44-1d merely because of his employment. State v.
Curso,
355 N.J. Super. 518, 528-29 (App. Div. 2002) (holding that
defendant's status as a police officer, for whom incarceration
could pose "peculiar hardships," insufficient basis to overcome
the presumption of imprisonment).
The sentencing transcript for defendant Lebra can in no way
support a finding that defendant Lebra is the idiosyncratic
defendant for whom imprisonment would be a serious injustice.
Indeed, the sentencing court made no such finding. In reviewing
the statutory aggravating and mitigating factors, the sentencing
court found only one aggravating factor, the need for deterrence.
N.J.S.A. 2C:44-1a(9). That was in accord with the State's
argument at sentencing; the prosecutor agreed that to be the only
aggravating factor present. In contrast, the sentencing court
found five mitigating factors: no history of prior criminal
activity, N.J.S.A. 2C:44-1b(7); defendant's conduct was the
result of circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8);
defendant was unlikely to commit another offense, N.J.S.A. 2C:44-
1b(9); defendant was likely to respond affirmatively to
probationary treatment, N.J.S.A. 2C:44-1b(10); and imprisonment
would involve excessive hardship for defendant, N.J.S.A. 2C:44-
1b(11).
The court then noted that although it was "a difficult
finding to make," the mitigating factors outweighed the
aggravating factors. It continued in the following manner:
[T]he law in this case provides that there should be a
presumption of imprisonment unless having regard to the
character and condition of the defendant, it is of the
opinion that imprisonment would be a serious injustice which
would override the need to deter.
After careful consideration of this, I find that there is
a need to deter, there is a need for, there is a need for
incarceration. And normally, the fine line distinction
between imprisonment, which imprisonment refers to a New
Jersey State Prison sentence, and incarceration refers to
a lesser incarceration . . . .
I find that the need to deter is present, but I find that
the presumption of imprisonment does not apply because of
the fact that the mitigating factors so highly outweigh
the aggravating factors . . . .
[T]here are lots of other young men who are out there,
and young women as well, who need to be deterred. And I
would hope that this sentence would have the dual effect
of deterring others, which I'm obliged to do pursuant to
the formula given to me. But at the same time, would give
due consideration to the mitigating factors that are clearly
present in this case.
The presumption of imprisonment, however, is not overcome
because the mitigating factors predominate, Jabbour, supra, 118
N.J. at 7, and the requirement of incarceration is not satisfied
by a period of county jail time. O'Connor, supra, 105 N.J. at
409. Although the sentencing court used the phrase "serious
injustice," it never explained what it was about the character
and condition of the defendant that would make his imprisonment a
serious injustice. The trial court never determined that the
mitigating factors amounted to "truly exceptional" circumstances
or rendered defendant's character and condition "idiosyncratic"
or determined that imprisonment would result in a "serious
injustice which overrides the need to deter such conduct by
others." Cooke, supra, 345 N.J. Super. at 347. Mere invocation
of the serious injustice exception will not suffice without a
detailed explanation of its application to the facts and
circumstances at hand and a reasoned demonstration that this is
one of those rare cases in which the otherwise paramount goals of
deterrence have been overridden.
We noted earlier that the trial court found as a mitigating
factor that imprisonment would pose an excessive hardship to
defendant. This finding was based upon the fact that defendant,
between the occurrence of the fatal accident and sentencing, was
diagnosed with a brain tumor. The record presented to us,
however, contains nothing beyond the fact of the diagnosis.
There is no indication of what treatment, if any, was prescribed
and what prognosis had been made. Nor is there any indication
that defendant's medical needs could not be adequately met while
incarcerated. The trial court clearly did not rely upon
defendant's health as a basis to withhold a sentence to state
prison. Compare State v. E.R.,
273 N.J. Super. 262 (App. Div.
1994) (holding that the "serious injustice" exception applied
because defendant was dying from the AIDS virus).
We have concluded that defendant Lebra must be resentenced
and we remand this matter for that purpose.
IV.
We turn now to the Comeaux matter. We are compelled to
comment upon a fundamental misapprehension under which the
participants appeared to operate both below and on appeal.
Defendant Comeaux was, as noted earlier, originally scheduled to
be sentenced the same day as defendant Lebra. Lebra's matter was
heard first. Comeaux's attorney, having heard the sentence Lebra
received, sought to obtain a similar result for his client. He
did not, however, argue for a downward departure from the
sentencing parameters of the plea bargain. Rather, he argued the
trial court should "reject" the plea bargain because of the
seeming difference in sentence outcomes. The prosecutor argued
that differences in the two cases justified the different
results. The trial court finally stated "after hearing arguments
of Counsel, it is my intention and I will reject this plea
agreement at this time and ask that the State reconsider its plea
offer to the defendant."
The trial court, however, was not required to "reject" the
plea bargain in order to impose a sentence lower than was
bargained for. It is only in the case of a so-called contract
plea under N.J.S.A. 2C:35-12 that a trial court cannot impose a
lesser sentence than the parties bargained for, but must instead
reject the bargain. State v. Bridges,
131 N.J. 402 (1993). The
court noted in State v. Leslie,
269 N.J. Super. 78, 84 (App. Div.
1993), certif. denied,
136 N.J. 29 (1994), that "Section 12
expressly limits the sentencing court's ability to sentence a
defendant to a lesser sentence than that 'provided under the
terms of the plea agreement.' If the trial court had any
misgivings about the validity or the fairness of the plea
agreement and the sentence to be imposed thereunder, it should
have rejected the plea and directed defendant to stand trial."
In other criminal matters, the "parties can agree only on a
sentence that the prosecutor will 'recommend' to the court; they
are not empowered to negotiate a sentence that can have any
binding effect." State v. Warren,
115 N.J. 433, 442 (1989). And
a plea bargain under which defendant agrees his attorney will not
argue in favor of a lesser term at sentencing than that set forth
in the plea bargain is invalid and unenforceable. State v.
Briggs,
349 N.J. Super. 496 (App. Div. 2002).
Other than the one exception we have noted, it is only when
a trial court concludes that it should impose a greater sentence
than was encompassed in the plea bargain that the trial court is
called upon to "reject" a plea bargain. That was not the
situation presented here, however.
We turn now to defendant's appeal from the sentence the
trial court finally imposed -- four years in prison, with an 85%
period of parole ineligibility. Defendant's appeal is based upon
the facial disparity of that sentence with the sentence imposed
upon Lebra. That argument is, however, moot in light of our
determination that Lebra must be resentenced.
The State, however, has also appealed, arguing that the
trial court improperly injected itself into the plea bargaining
process and that the sentence did not comport with the statutory
sentencing guidelines. While we agree that the trial court's
actions did not comport with the requirements of R. 3:9-3(c), we
decline to set aside the sentence on that basis; we consider it
more productive to focus on the substance of the sentence itself.
N.J.S.A. 2C:44-1f(2) provides that a court may, if "clearly
convinced that the mitigating factors substantially outweigh the
aggravating factors and where the interest of justice demands,"
sentence one convicted of a first or second-degree crime "to a
term appropriate to a crime of one degree lower than that of the
crime for which he was convicted." There are, thus, two prongs
which must be satisfied before a court may sentence an offender
to a lower range: the court must be clearly convinced that the
mitigating factors substantially outweigh the aggravating factors
and the interest of justice must demand the lower sentence range.
Here, the trial court found aggravating factor nine, the
need for deterrence, N.J.S.A. 2C:44-1a(9). It also noted the
slight nature of defendant's criminal background and determined
that aggravating factor six was entitled to only the "slightest
weight." N.J.S.A. 2C:44-1a(6). It then found four mitigating
factors: no prior criminal record (N.J.S.A. 2C:44-1b(7)); his
conduct was the result of circumstances unlikely to recur
(N.J.S.A. 2C:44-1b(8)); his character and attitude indicate he
was unlikely to commit another offense (N.J.S.A. 2C:44-1b(9));
and imprisonment would pose an excessive hardship to defendant or
his dependents (N.J.S.A. 2C:44-1b(11)).
Based on that, the trial court concluded that the mitigating
factors substantially outweighed the aggravating factors and that
it would sentence defendant as a third-degree offender. That,
however, is an insufficient basis to downgrade an offense for
sentencing purposes. After imposing sentence, defense counsel
inquired if the court were:
finding that it's clearly convinced that the mitigating
factors substantially outweigh the aggravating factors and
that the interest of justice demands that he be sentenced
. . . in the third degree range?
The trial court responded that it was making those findings but it
did not supplement its sentencing analysis in any regard. The
analysis, however, was clearly insufficient. 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. Further, we are unable
to determine from the record supplied to us how the trial court
determined that mitigating factor eleven applied. There is no
indication in the pretrial report that defendant has any dependents
at all; indeed, it clearly states he has none. Defendant's attorney
mentioned that defendant was injured in the accident as well and,
according to the pretrial report, he has "pins and plates in his
neck and arm, and a rod in his thigh." There is no evidence in the
record before us, however, that imprisonment would pose a risk to
defendant's health.
We recognize that at the conclusion of defendant's sentencing,
when the prosecutor indicated his intent to appeal, he also
indicated that in no event would he seek a sentence of more than
five years, subject to NERA, while the trial court sentenced
defendant to four years, subject to NERA. We cannot conclude that a
disparity of only one year justifies disregarding the deficiencies
in defendant's sentencing proceedings. We are satisfied that
Comeaux, as Lebra, must be resentenced. We express no view on
whether the record could be supplemented in a manner that would
support sentencing defendant Comeaux as a third-degree offender.
In State v. Lebra, A-2454-01, the matter is remanded for
resentencing in accordance with this opinion and the Code's
statutory guidelines. In State v. Comeaux, A-2943-01, we also
remand for resentencing in accordance with this opinion and the
Code's statutory guidelines; defendant's cross-appeal is dismissed
as moot.