State v. Torres

• Decision Date: 11 May 2021
• Docket Number: A-52 September Term 2019,083676
• Citation: 246 N.J. 246,250 A.3d 433
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Edgar TORRES, Defendant-Appellant.
• Court: New Jersey Supreme Court

246 N.J. 246

250 A.3d 433

STATE of New Jersey, Plaintiff-Respondent, v. Edgar TORRES, Defendant-Appellant.

A-52 September Term 2019

083676

Supreme Court of New Jersey.

Argued November 10, 2020

Decided May 11, 2021

Scott M. Welfel, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Scott M. Welfel, of counsel and on the briefs).

Carey J. Huff, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Carey J. Huff, of counsel and on the briefs).

Alexander Shalom argued the cause for amicus curiae American Civil Liberties Union of New Jersey (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom, Newark, and Jeanne LoCicero, on the brief).

Michael R. Noveck argued the cause for amici curiae Professors of Criminology (Gibbons, attorneys; Michael R. Noveck and Lawrence S. Lustberg, Newark, on the brief).

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey ( Gurbir S. Grewal, Attorney General, attorney; Jennifer E. Kmieciak, of counsel and on the brief).

JUSTICE LaVECCHIA delivered the opinion of the Court.

A sentencing court's decision between imposing consecutive or concurrent sentences on a defendant for multiple offenses has the potential to drastically alter aggregate sentence length. In State v. Yarbough, this Court first addressed the standards that sentencing courts should use when imposing concurrent or consecutive sentences for multiple offenses under the Code of Criminal Justice (Code). ¹ 100 N.J. 627, 498 A.2d 1239 (1985). The Code had altered New Jersey's previous approach to sentencing, and although the new scheme offered guideposts and directions to courts with respect to much of sentencing, it left the concurrent/consecutive decision within the discretion of the sentencing court. N.J.S.A. 2C:44-5(a) states only that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." There are just a few narrow exceptions where statutory direction exists on this subject. See N.J.S.A. 2C:44-5(b)(3), -5(c), and -5(h).

The Court in Yarbough sought to assist courts with the exercise of discretion when sentencing a defendant for multiple offenses by identifying factors to consider when weighing whether to impose consecutive or concurrent sentences, thereby furthering the Code's paramount goal of promoting "greater uniformity" in sentencing. 100 N.J. at 635, 498 A.2d 1239. However, the difficulty of fashioning a satisfactory approach to sentencing offenders convicted of multiple offenses was not lost on the Yarbough Court. The topic was recognized then as one challenging many jurisdictions. Id. at 639-44, 498 A.2d 1239. And it remains challenging, largely due to the complexity of the task.

The Yarbough Court took pains to provide clarity in its guidance while admitting that its efforts left room for continued improvement. Id. at 647, 498 A.2d 1239 (noting that "much remain[ed] to be done" to further the goal of predictable uniformity in sentencing -- "a goal that we shall continue to seek"). To the extent that some courts, as evidenced in the present appeal, have interpreted Yarbough as circumscribing their ability to craft a just sentence, refinement and improvement of the Yarbough factors analysis appears necessary.

Through the years, our Court has sought again and again to underscore that concepts of uniformity, predictability, and proportionality in sentencing birthed the Yarbough factors. See, e.g., State v. Liepe, 239 N.J. 359, 371-72, 217 A.3d 151 (2019) ; State v. Carey, 168 N.J. 413, 427-28, 775 A.2d 495 (2001). In this matter, we again take steps to promote those goals, as we also await further action by the New Jersey Criminal Sentencing and Disposition Commission, which may touch on some policy-laden sentencing arguments advanced in this appeal. ²

I.

A.

Between late 2010 and early 2011, a spate of three bank robberies occurred in Monmouth County. Two of the robberies took place in Howell Township in December 2010 and January 2011, and a third occurred in Ocean Township on February 16, 2011. Each featured a sole man who approached a bank teller, presented a firearm, and demanded cash. Shortly after the third robbery, on February 25, 2011, defendant was arrested in connection with a police investigation into the robbery spree.

After receiving Miranda ³ warnings and waiving his rights, defendant gave a videotaped statement in which he confessed to all three robberies. Thereafter, on March 11, 2011, defendant was interviewed by police again. After re-waiving his Miranda rights, defendant confessed to two earlier bank robberies in Monmouth County: one in Farmingdale in November 2006 and another in Freehold in October 2009.

B.

Defendant was charged in a single indictment with eleven counts related to the robberies. The counts are organized in relation to the robberies' location and sequence in time.

For the 2006 Farmingdale robbery, defendant was charged with second-degree conspiracy to commit armed robbery contrary to N.J.S.A. 2C:5-2 and 2C:15-1 (Count One), first-degree armed robbery contrary to N.J.S.A. 2C:15-1 (Count Two), and second-degree possession of a weapon for an unlawful purpose contrary to N.J.S.A. 2C:39-4(a) (Count Three).

For the 2009 Freehold robbery, defendant was charged with first-degree armed robbery (Count Four) and second-degree possession of a weapon for an unlawful purpose (Count Five).

For the 2010 Howell robbery, defendant was charged with first-degree armed robbery (Count Six) and second-degree possession of a weapon for an unlawful purpose (Count Seven).

For the 2011 Howell robbery, defendant was charged with first-degree armed robbery (Count Eight) and second-degree possession of a weapon for an unlawful purpose (Count Nine); and for the 2011 Ocean robbery, defendant was charged with first-degree armed robbery (Count Ten) and second-degree possession of a weapon for an unlawful purpose (Count Eleven).

Defendant moved to sever the indictment into five separate trials. The State responded by urging the court to instead hold two trials, which the court determined to do. The court ordered that defendant first be tried on the three 2010 and 2011 robberies, after which he would face a second trial on the earlier 2006 and 2009 robberies.

At the conclusion of the first trial on November 9, 2012, defendant was convicted on Counts Six through Eleven, which constituted all six counts arising from the 2010 and 2011 robberies. Defendant's sentencing for those convictions took place on February 1, 2013.

Preliminarily, the court concluded that defendant was eligible for an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The court also merged each of the three unlawful-possession-of-a-weapon convictions into the three first-degree robbery convictions. The court then sentenced defendant on Count Six, first-degree armed robbery, to a term of forty years in prison, subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the other two first-degree armed robbery counts (Counts Eight and Ten), the court sentenced defendant to twenty and twenty years, respectively, and ordered those sentences to run concurrently to each other and to Count Six. The court did not explain its reasons for imposing concurrent sentences with respect to the two 2011 robberies. At the time of this first sentencing proceeding, the court stressed that the second trial would be wholly separate:

Also, I want it abundantly clear that at the defense request there was a severance of these counts from the other counts. The other case is a clear separate and distinct series of criminal acts and will be treated as such. There is a status conference in the other armed robbery which is still pending for February 25th. The defendant will be produced before the [c]ourt at that time to discuss a trial date on the remaining counts. And I repeat, having granted the defense motion for severance, those are separate and distinct counts.

A second trial ensued concerning the 2006 and 2009 robberies, and on March 13, 2014, the jury reached its verdict, convicting defendant of first-degree armed robbery (Count Two), second-degree possession of a weapon for an unlawful purpose (Count Three), and an amended lesser charge of second-degree robbery (Count Four). ⁴

On May 2, 2014, defendant appeared for sentencing on his convictions from the second trial. The sentencing court found applicable three aggravating factors -- N.J.S.A. 2C:44-1(a)(3), (6), and (9) -- and found no mitigating factors. In pertinent part, defendant was sentenced to twenty years' imprisonment for the armed robbery conviction on Count Two and ten years' imprisonment on Count Four (second-degree robbery), each subject to NERA. The sentencing court imposed those terms consecutively, stating that the Yarbough factors counseled in favor of consecutive terms because each robbery was a separate offense:

The Court is placing on the record two things: Number one, that the robberies of which this defendant was convicted both in the first trial and the second trial apply all the Yarbough standards. These are clearly separate offenses and he will be sentenced accordingly.

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 2010 and 2011 robberies. As a result, defendant would not begin serving the thirty-year portion of his aggregate sentence until he was seventy-seven years old.

Defendant appealed both of his convictions and sentences. Defendant's first conviction, on the three later-in-time robberies, was affirmed on appeal, and this Court denied certification. State v. Torres, 231...