State v. Hodge

• Decision Date: 07 February 1984
• Citation: 471 A.2d 389,95 N.J. 369
• Parties: STATE of New Jersey, Plaintiff-Appellant and Cross-Respondent, v. James A. HODGE, Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Supreme Court

Page 369

95 N.J. 369

471 A.2d 389

STATE of New Jersey, Plaintiff-Appellant and Cross-Respondent, v. James A. HODGE, Defendant-Respondent and Cross-Appellant.

Supreme Court of New Jersey.

Argued Oct. 12, 1983.

Decided Feb. 7, 1984.

Joyce E. Munkacsi, Asst. Prosecutor, for plaintiff-appellant and cross-respondent (Richard S. Rebeck, Middlesex County Prosecutor, attorney).

Mark H. Friedman, Asst. Deputy Public Defender, for defendant-respondent and cross-appellant (Joseph H. Rodriguez, Public Defender, attorney).

Victoria Curtis Bramson, Deputy Atty. Gen. for amicus curiae Atty. Gen. (Irwin I. Kimmelman, Atty. Gen., attorney).

The opinion of the Court was delivered by

O'HERN, J.

Defendant, Hodge, pleaded guilty to aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a), admitting he had committed acts of sexual intercourse with his stepdaughter, aged 13, over a year's time. The statute makes sexual contact of this sort a crime of the first degree when the victim is 13 to 16 years old and the offender has a supervisory role within the household, even in the absence of force or violence, as in this case. N.J.S.A. 2C:14-2(a)(2)(c).

Defendant was a first offender, employed full-time and was supporting his wife and their natural daughter. The presentence report recommended that despite his status as a first offender, defendant should be imprisoned, in view of the victim's youth. In addition to the presentence report, the trial judge consulted a report from the Adult Diagnostic and Treatment Center, furnished under N.J.S.A. 2C:47-2, and reviewed interviews with the defendant's neighbors and doctors' evaluations.

The court formulated the sentence by balancing the aggravating and mitigating factors listed in N.J.S.A. 2C:44-1(a) and (b). The aggravating factors were the extreme gravity of the offense and the victim's age. The mitigating circumstances included the facts that defendant was a first offender and the forbidden conduct was unlikely to reoccur; defendant was likely to respond favorably to probationary treatment, was regularly employed, supported a family, and was well thought of by his peers; and the fact that the effect of imprisonment on his family would be severe.

Against this background, the trial judge sentenced Hodge to 63 days in prison, five years' probation, fines totalling $2,525.00, and a directive to undergo psychiatric care.

The State appealed the sentence pursuant to N.J.S.A. 2C:44-1(f)(2). The Appellate Division, in a divided opinion, affirmed the judgment of the trial court, noting that the "pertinent criteria for withholding or imposing a sentence of imprisonment involve a weighing of the aggravating and mitigating factors enumerated in N.J.S.A. 2C:44-1." Under the sentencing review standards of State v. Whitaker, 79 N.J. 503, 401 A.2d 509 (1979), the court confirmed that it should refrain from interfering with the sentencing function in the absence "of such shock to the judicial conscience as to be convincing that upholding the action reviewed would be 'manifestly unjust.' " Whitaker, 79 N.J. at 514, 401 A.2d 509 (quoting Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236, 276 A.2d 861 (1971)). The dissenting judge emphasized that the "crime is egregious" and the "mitigating factors are comparatively few," and that incarceration more accurately reflected the severity of the crime. In his view, the presence of mitigating factors might have justified a sentence appropriate to a second degree crime, under N.J.S.A. 2C:44-1(f)(2). The State appealed under R. 2:3-1(a), and the defendant petitioned for certification, challenging the State's right to appeal. We granted certification. 94 N.J. 517, 468 A.2d 176 (1983).

This case presents an additional issue not present in State v. Roth, 95 N.J. 334, 471 A.2d 370 (1984), also decided today. An amendment to N.J.S.A. 2C:44-1 that became effective in September 1981, redefined the presumption of imprisonment for all first and second degree crimes. L.1981, c. 290, § 40. Until shortly before defendant's sentencing, however, this provision read:

d. Presumption of imprisonment. Where a statute defining a crime of the first or second degree provides that a presumption of imprisonment shall be applied upon conviction or where a statute outside the code defining an offense which would be a crime of the first or second degree under the code provides for a mandatory sentence, a presumption of imprisonment shall apply. The court shall deal with a person who has been convicted of such a crime by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. [L.1979, c. 178, § 93.]

The aggravated sexual assault statute under which Hodge was charged did not expressly include a presumption of imprisonment. L.1979, c. 178, § 26.

In 1981, the Code was amended to provide a presumption of imprisonment for all first and second degree crimes:

d. Presumption of imprisonment. The court shall deal with a person who has been convicted of a crime of the first or second degree by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others. [ N.J.S.A. 2C:44-1(d), as amended by L.1981, c. 290, § 40.]

It is the State's position that the amendment merely clarified, but did not change the prior law. This contention is supported by the Statement to Senate Committee Substitute for Senate, No. 1537 (January 2, 1981), which explained that the proposed amendment "clarifies that the code does set a presumption of imprisonment for crimes of the first or second degree."

Under the defendant's view, the original statute would read that there is a presumption only when another statute provides such presumption. Such a law would merely echo others and have no independent force of its own. There being no other provision, there is no echo. It is the State's view that the Legislature does not devise useless or meaningless statutes, County of Monmouth v. Wissell, 68 N.J. 35, 42, 342 A.2d 199 (1975), and that since the structure of the original statute included a presumption of non-imprisonment for third and fourth degree crimes, N.J.S.A. 2C:44-1(e), by implication there existed a presumption of imprisonment for first and second degree crimes.

But the message is unclear. Statutes rendering behavior criminal and fixing the applicable penalties must do so in terms that cannot arguably be misunderstood and must be construed "so as to avoid the unfairness of arbitrary enforcement." State v. Maguire, 84 N.J. 508, 514 n. 6, 423 A.2d 294 (1980). We do so here and conclude that the 1981 amendment should not be applied retroactively to this case. See State v. Jones, 188 N.J.Super. 201, 457 A.2d 37 (App.Div.1983).

We find, however, that the undeniable thrust of the Code's sentencing structure even before the 1981 amendment was to create a fundamental change in the sentencing process.

In Maguire, decided before the 1981 amendment, we held that

[u]ntil the enactment of the Code, the Legislature had not expressly identified the legitimate aims of punishment or established a consistent framework for guiding sentencing discretion. State v. Ivan, 33 N.J. 197, 200 (1960). * * * [W]e sought to corral the virtually unfettered sentencing discretion exercised by judges by identifying basic aims of criminal punishment, Ivan, supra, 33 N.J. at 200-202 ; by cataloging various aggravating and mitigating factors to be considered in fixing a sentence, State v. Leggeadrini, 75 N.J. 150, 156-59 (1977); * * * by requiring an express statement of reasons for the particular disposition * * * to facilitate meaningful appellate review. * * * Despite these judicial efforts sentencing disparity continued to plague the administration of criminal justice.

In enacting the new Code, the Legislature has for the first time addressed directly the problem of sentence disparity. The Code not only identifies the permissible aims of punishment, but also establishes a general framework to guide judicial discretion in imposing sentences. [Maguire, 84 N.J. at 530-32, 423 A.2d 294 (citations and footnotes omitted).]

The channeling of that discretion was premised upon the new sentencing philosophy of the Code, which was offense-oriented and did not focus on the rehabilitation of offenders.

Had the Legislature not intended such a change there would have been little need for the crafting and grading of offenses in the Code. Skeptics saw this process as the principal obstacle to making the punishment fit the crime, describing as "heroic reform" the creation of a system that must "define offenses with a morally persuasive precision that present laws do not possess." Zimring, Making the Punishment Fit the Crime: A Consumer's Guide to Sentencing Reform, in Sentencing 327, 330-31 (H. Gross and A. von Hirsch eds. 1981). Yet that is precisely what the Legislature did in fashioning the Code:

Crimes would be defined with precision and specific offenses would carry specified sentences, along with lists of aggravating and mitigating circumstances that could modify the penalty. [Zimring, supra, at 330.]

A few examples will suffice. There are four degrees of arson. Any person who accepts money or other consideration to set a fire is guilty of arson in the first degree. N.J.S.A. 2C:17-1(d). It is a second-degree crime to set a fire purposefully endangering another person, in order to destroy a building or to collect insurance proceeds. N.J.S.A. 2C:17-1(a). A person who sets fire to a dwelling and recklessly endangers a person or building has committed arson in the third degree. N.J.S.A. 2C:17-1(b). And fourth degree arson occurs when an individual fails to report or control a...