State v. Carlos Bolvito (071493) , 217 N.J. 221 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State v. Carlos Bolvito (A-44-12) (071493)
Argued November 6, 2013 -- Decided March 31, 2014
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court addresses whether a sentencing court may consider a defendant’s ability to pay
when setting a monetary penalty pursuant to the Sex Crime Victim Treatment Fund (SCVTF), N.J.S.A. 52:4B-43.2.
Defendant Carlos Bolvito pled guilty to three offenses arising from sexual assaults of his stepdaughter:
First-degree aggravated sexual assault, second-degree sexual assault, and second-degree endangering the welfare of
a child. These predicate offenses triggered the imposition of mandatory penalties under the SCVTF, but the plea
agreement presented to the trial court did not specifically address the SCVTF penalties to be assessed against
defendant. Defendant signed a plea form, however, acknowledging his understanding that “as a result of [his] guilty
plea [he would] be required to pay a mandatory [SCVTF] penalty.” The form disclosed the applicable maximum
penalty amounts for each offense to which defendant pled guilty, and listed the “Total S.C.V.T.F. Penalty” as
$4,000.00. During the plea colloquy, the court also asked whether defendant understood that he would have to
contribute “a total of $4,000” to the SCVTF, and defendant responded affirmatively. Satisfied that defendant had
set forth an adequate factual basis for a plea of guilty as to all three charges, and that defendant understood the
consequences of his plea, the trial court accepted defendant’s guilty plea.
After analyzing the applicable aggravating and mitigating factors, the trial court sentenced defendant to a
term of imprisonment, imposed parole supervision for life, ordered defendant to pay $6,230.40 in restitution, and
assessed an SCVTF penalty of $4,000.00 in addition to other fines, charges, and penalties. The court did not
provide a statement of reasons or identify the factors that it considered in setting the amount of the SCVTF penalty.
Defendant appealed his sentence. In addition to challenging his custodial sentence and the order of
restitution, defendant argued that he should not be required to pay his SCVTF penalty because the court did not hold
a hearing to determine his ability to pay the penalty, and the record did not indicate how the penalty was calculated.
The Appellate Division rejected defendant’s contention that the court should have considered his ability to pay when
it calculated the SCVTF penalty. The panel remanded to the trial court for reconsideration of its restitution order,
but otherwise affirmed defendant’s sentence. The Court granted Bolvito’s petition for certification, limited to the
issue of whether a sentencing court may consider a defendant’s ability to pay when imposing an SCVTF penalty.
213 N.J. 394-95 (2013).
HELD: A sentencing court may impose the mandatory Sex Crime Victim Treatment Fund penalty in any amount
between a nominal figure and the upper limit prescribed by N.J.S.A. 2C:14-10(a) for the degree of the offense at issue.
In setting the penalty, the sentencing court should (1) consider the nature of the offense and the defendant’s ability to
pay the penalty during any custodial sentence imposed and after his or her release, and (2) provide a statement of
reasons as to the amount of any penalty.
1. Appellate courts apply a deferential standard of review to a sentencing court’s determination, but not to its
interpretation of a law. In reviewing the amount of a SCVTF penalty imposed by a sentencing court pursuant to
N.J.S.A. 2C:14-10, the Court construes that provision in accordance with established principles of statutory
interpretation. The Court’s task is to ascertain the Legislature’s intent, reflecting its chosen language, and to give
the words of the statute “‘their generally accepted meaning.’” State v. Marquez, 202 N.J. 485, 499 (2010) (quoting
N.J.S.A. 1:1-1). (pp. 9-10)
2. In 2005, the Legislature established the SCVTF to defray the cost of counseling and treatment services for the
victims of certain sex offenses and their families. N.J.S.A. 52:4B-43.2; S. 781 (Sponsor’s Statement), 211th Leg.
1
(Feb. 5, 2004). To fund the services, the Legislature enacted N.J.S.A. 2C:14-10, which imposes upon defendants
convicted of enumerated sex offenses a monetary penalty from a nominal amount to a specific maximum amount
based upon the degree of the offense. Specifically, N.J.S.A. 2C:14-10 states that a person convicted of a qualifying
sex offense “shall” be assessed the statutory penalty. The Legislature’s choice of language makes clear that it
intended that an SCVTF penalty be imposed on any defendant convicted of a predicate offense. That interpretation
is underscored by the sponsor’s statement attached to the bill. S. 781 (Sponsor’s Statement), 211th Leg. (Feb. 5,
2004) (sex offender “would be assessed a penalty for each such offense”). Thus, if a defendant commits a predicate
offense, the sentencing court lacks the discretion to dispense with the SCVTF penalty. (pp. 11-14).
3. Although SCVTF penalties are mandatory when the defendant commits a predicate offense, the sentencing court
has substantial discretion with respect to the amount of the penalty. For each degree of offense, the Legislature set
an SCVTF penalty “not to exceed” a particular amount, but there is no evidence that the Legislature intended the
maximum SCVTF penalty for a lower degree of offense to constitute the minimum penalty for a higher degree
offense. See N.J.S.A. 2C:14-10(a); S. 781 (Sponsor’s Statement), 211th Leg. (Feb. 5, 2004). The Legislature is
fully conversant in the language necessary to set minimum and maximum parameters for a monetary penalty and has
used such language in other statutes. By contrast, the “not to exceed” language in N.J.S.A. 2C:14-10 imposes a
ceiling, not a floor, on the amount to be assessed as an SCVTF penalty for each degree of offense, and thus a court
may impose a penalty in any amount, from a nominal amount up to the statutory maximum. (pp. 14-15)
4. When a sentencing court exercises its discretion to set an SCVTF penalty within the applicable statutory range, it
should consider a defendant’s ability to pay. The Legislature specifically instructed sentencing courts to consider a
defendant’s ability to pay when imposing several other monetary assessments. See N.J.S.A. 2C:44-2(c)(2)
(restitution); N.J.S.A. 2C:44-2(c)(1) (fines); N.J.S.A. 2C:43-3.1(a)(1) (Violent Crimes Compensation Board
penalties). By contrast, other penalties prescribed by statute impose a “fixed” amount that “must be imposed
regardless of [a] defendant’s ability to pay.” See N.J.S.A. 2C:35-15 (Drug Enforcement Demand Reduction
penalty). Here, the Legislature did not impose “fixed” amounts for mandated SCVTP penalties, nor did it prescribe
criteria for a court to apply when setting a penalty within the statutory range. However, N.J.S.A. 2C:1-2(c)
generally instructs courts that “‘discretionary powers conferred by the code shall be exercised in accordance with the
criteria stated in the code and, insofar as such criteria are not decisive, to further the general purposes’ of the Code.”
State v. Yarbough, 100 N.J. 627, 636 (1985) (quoting N.J.S.A. 2C:1-2(c)), cert. denied, 475 U.S. 1014 (1986) (pp.
15-17)
5. Applying the governing principles of Yarbough, two factors should be considered in a sentencing court’s
application of N.J.S.A. 2C:14-10. First, the court should consider the nature of the offense when determining a
defendant’s SCVTF penalty within the statutory range. This promotes the principle of punishment in proportion to
the offense, encourages uniformity in sentencing, and, consistent with the legislative intent, furthers the goal of
requiring sex offenders to alleviate the financial burden imposed on victims of sex crimes, their families and public
resources. Second, a sentencing court setting an SCVTF penalty should consider the defendant’s ability to pay the
amount assessed. In so doing, the court should look beyond the defendant’s current assets and anticipated income
during the period of incarceration, and should assess the defendant’s ability to pay over the long term. If unpaid, the
penalty does not evaporate at the conclusion of the defendant’s custodial sentence or his or her period of parole
supervision. (pp. 17-20)
6. Finally, the sentencing court should provide a statement of reasons when it sets a defendant’s SCVTF penalty
within the statutory parameters, so as to apprise the parties, the victim, and the public and facilitate appellate review.
(pp. 20-21)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED for proceedings
consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and FERNANDEZ-VINA; and
JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUDGE RODRÍGUEZ
(temporarily assigned) did not participate.
2
SUPREME COURT OF NEW JERSEY
A-44 September Term 2012
071493
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS BOLVITO,
Defendant-Appellant.
Argued November 6, 2013 – Decided May 31, 2014
On certification to the Superior Court,
Appellate Division.
Peter T. Blum, Assistant Deputy Public
Defender, argued the cause for
appellant (Joseph E. Krakora, Public
Defender, attorney).
Emily R. Anderson, Deputy Attorney
General, argued the cause for
respondent (John J. Hoffman, Acting
Attorney General of New Jersey,
attorney).
JUSTICE PATTERSON delivered the opinion of the Court.
In 2005, the Legislature established the Sex Crime
Victim Treatment Fund (SCVTF) to defray the cost of
counseling and treatment services for the victims of
certain sex offenses and their families. N.J.S.A. 52:4B-
43.2. To fund the services, the Legislature enacted
N.J.S.A. 2C:14-10, which imposes upon defendants convicted
of enumerated sex offenses a monetary penalty from a
1
nominal amount to a specific maximum amount based upon the
degree of the offense. The statute does not set forth the
factors that a sentencing court should consider when
imposing an SCVTF penalty. N.J.S.A. 2C:14-10.
This appeal requires the Court to determine whether a
sentencing court may consider a defendant’s ability to pay
when it determines the amount of an SCVTF penalty that a
defendant owes. Defendant Carlos Bolvito pled guilty to
three offenses arising from sexual assaults of his
stepdaughter. In addition to a term of incarceration and
other fines and penalties, the trial court imposed an SCVTF
penalty of $4000, but did not provide a statement of
reasons or identify the factors that it considered in
setting the amount of the penalty. An Appellate Division
panel rejected defendant’s contention that the sentencing
court should have considered his ability to pay when it
calculated the amount of his SCVTF penalty, and affirmed
his sentence.
We reverse and remand for reconsideration of the
amount of the SCVTF penalty imposed on defendant. We hold
that the SCVTF penalty is mandatory in cases in which a
defendant is convicted of a sexual offense identified in
the statute. We further hold that a sentencing court may
impose an SCVTF penalty against a defendant in any amount
2
between a nominal figure and the upper limit prescribed by
N.J.S.A. 2C:14-10(a) for the degree of the offense at
issue. In setting an SCVTF penalty, the sentencing court
should consider the nature of the offense, as well as the
defendant’s ability to pay the penalty during any custodial
sentence imposed and after his or her release. We further
hold that the sentencing court should provide a statement
of reasons as to the amount of any penalty imposed pursuant
to N.J.S.A. 2C:14-10(a).
Accordingly, we reverse and remand to the sentencing
court for reconsideration of the amount of defendant’s
SCVTF penalty.
I.
On two occasions in November 2010, defendant sexually
assaulted his seven-year-old stepdaughter. The assaults
were discovered following a physician’s examination of the
child. Defendant’s wife contacted the police, and in an
interview with police officers, the child recounted the
assaults. After being given warnings pursuant to Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966), defendant was interrogated. He admitted to sexual
contact with the child.
Defendant was charged with first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a)(1); second-degree
3
sexual assault, N.J.S.A. 2C:14-2(b); and second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
Following his indictment, defendant entered into a plea
agreement with the State in which he agreed to plead guilty
to all three charges, and the State agreed to recommend a
twelve-year term of incarceration subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. In the plea agreement
presented to the trial court, the State and defendant did
not specifically address the SCVTF penalty to be assessed
against defendant.
On January 28, 2011, defendant pled guilty to all
three of the charges in the indictment, and signed a plea
form that included the following question:
8. Sex Crime Victim Treatment Fund
Penalty (S.C.V.T.F.)
Do you understand that if the crime
occurred on or after April 26, 2005, as
a result of your guilty plea you will
be required to pay a mandatory Sex
Crime Victim Treatment Fund
(S.C.V.T.F.) penalty as listed below
for each offense for which you pled
guilty?
b. The mandatory penalties are as
follows:
(1) Up to $2,000 in the case of a 1st
degree crime
(2) Up to $1,000 in the case of a 2nd
degree crime
(3) Up to $750 in the case of a 3rd
degree crime
(4) Up to $500 in the case of a 4th
degree crime
4
TOTAL S.C.V.T.F. Penalty: $
On defendant’s form, “yes” was circled next to the
question seeking to verify defendant’s understanding that
he would be required to pay the SCVTF penalty. In
addition, subsection (1), relevant to first-degree
offenses, and subsection (2), relevant to second-degree
offenses, were circled by hand, and there was a handwritten
notation of “$4000.00” on the space for the SCVTF penalty
amount. Defendant signed and dated the form. The trial
court then conducted a plea colloquy with defendant that
included the following exchange:
[The Court:] Also, do you understand
that, if the -- since the crime
occurred after April 26th, 2005, there’s
a Sex Crime Victim Treatment Fund to
which you will have to make
contributions of $2,000 for the first-
degree offense and $1,000 for each of
the second-degree offenses for a total
of $4,000? Do you understand that you
will have to pay that?
[Defendant:] Yes.
The trial court stated that it was satisfied that
defendant had set forth an adequate factual basis for a
plea of guilty as to all three charges, and that defendant
understood the consequences of his plea. Accordingly, the
trial court accepted defendant’s guilty plea.
5
Defendant was sentenced on June 24, 2011. The
sentencing court found four aggravating factors enumerated
in N.J.S.A. 2C:44-1(a): (1) the gravity and seriousness of
harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2); (2)
the risk that defendant will commit another offense,
N.J.S.A. 2C:44-1(a)(3); (3) the extent of defendant’s prior
criminal record, N.J.S.A. 2C:44-1(a)(6); and (4) the need
for deterrence, N.J.S.A. 2C:44-1(a)(9). It found that none
of the mitigating factors set forth in N.J.S.A. 2C:44-1(b)
applied to defendant.
The court sentenced defendant to a twelve-year term of
imprisonment on the first-degree aggravated sexual assault
charge, a concurrent seven-year term of imprisonment on the
second-degree sexual assault charge, and a concurrent
seven-year term of imprisonment on the second-degree charge
of endangering the welfare of a child. Parole supervision
for life was imposed as well. The sentencing court noted
defendant’s immigration status, and stated that he would be
required to serve his full custodial sentence before being
deported to Guatemala, the country of his citizenship. The
sentencing court advised defendant that he would be barred
from contacting the victim, required to provide a DNA
sample and pay the cost of the DNA analysis, and subject to
registration requirements, community notification, address
6
verification and internet registry pursuant to Megan’s Law,
N.J.S.A. 2C:7-1 to -19. The sentencing court also ordered
defendant to pay restitution, several statutory assessments
and a surcharge.1 One of those penalties was described by
the sentencing court, without further explanation, as a
“4,000-dollar Sex Crime Victim Treatment Fund penalty,”
pursuant to N.J.S.A. 2C:14-10.
Defendant appealed his sentence. In addition to
challenging his custodial sentence and the court’s
restitution order, defendant argued that he should not be
required to pay his SCVTF penalty because the sentencing
court did not hold a hearing to determine his ability to
pay the penalty, and the record did not indicate how the
penalty was calculated. The Appellate Division remanded to
the trial court for reconsideration of its restitution
order, but otherwise affirmed defendant’s sentence.
1
The sentencing court ordered defendant to pay $6,230.40 in
restitution for the victim’s “loss of support and
psychological counseling,” N.J.S.A. 2C:43-3(a). It also
ordered him to pay $150 to the Victims of Crime
Compensation Office, N.J.S.A. 2C:43-3.1(a)(2)(a), $225 for
the Safe Neighborhoods Services Fund, N.J.S.A. 2C:43-
3.2(a)(1), $30 for the Law Enforcement Officers Training
and Equipment Fund, N.J.S.A. 2C:43-3.3(a), $2400 for the
Statewide Sexual Assault Nurse Examiner Program Fund,
N.J.S.A. 2C:43-3.6, and a $100 surcharge imposed upon
certain sexual offenders, N.J.S.A. 2C:43-3.7.
7
This Court granted certification, limited to the issue
of whether a sentencing court must consider a defendant’s
ability to pay when imposing an SCVTF penalty. 213 N.J.
394-95 (2013).
II.
Representing that he will be unable to pay his SCVTF
penalty, defendant argues that the trial court should have
held a hearing to assess his financial status. He contends
that the amount of money listed for each degree of offense
in N.J.S.A. 2C:14-10 represents a maximum that the
sentencing court can assess, not a mandatory penalty.
Defendant urges the Court to require sentencing courts to
state the reasons for imposing SCVTF penalties, and argues
that a defendant’s ability to pay should be the primary
consideration for the court. He proposes that a sentencing
court should presume that a defendant’s earnings will be
minimal following his release from a custodial sentence,
and offers several factors to guide sentencing courts in
determining the defendant’s ability to pay and the amount
of SCVTF penalties.
The State concurs that a defendant’s ability to pay
may be considered by the sentencing court, but argues that
it should be a secondary concern. It contends that the
sentencing court should focus upon the nature and severity
8
of the crime, given the legislative purpose of N.J.S.A.
2C:14-10 to assist victims of sexual offenses. The State
construes N.J.S.A. 2C:14-10 as setting a range for each
degree of offense, so that the upper limit for a second-
degree offense, $1000, constitutes the minimum SCVTF
penalty for a first-degree offense. The State argues that
the sentencing court properly assessed the $4000 SCVTF
penalty in this case based on defendant’s guilty plea to
one first-degree offense and two second-degree offenses,
and that the Court therefore should affirm the Appellate
Division panel’s judgment.
III.
We apply a deferential standard of review to the
sentencing court’s determination, but not to the
interpretation of a law. Appellate review of a criminal
sentence is limited; a reviewing court decides whether
there is a “clear showing of abuse of discretion.” State
v. Whitaker, 79 N.J. 503, 512 (1979) (internal quotation
marks omitted); see also State v. Blackmon, 202 N.J. 283,
297 (2010) (“Appellate review of sentencing decisions is
relatively narrow and is governed by an abuse of discretion
standard.”). Appellate courts must affirm the sentence of
a trial court unless: (1) the sentencing guidelines were
violated; (2) the findings of aggravating and mitigating
9
factors were not “based upon competent credible evidence in
the record;” or (3) “the application of the guidelines to
the facts” of the case “shock[s] the judicial conscience.”
State v. Roth, 95 N.J. 334, 364-65 (1984).
We review only one aspect of defendant’s sentence: the
amount of the SCVTF penalty imposed by the sentencing court
pursuant to N.J.S.A. 2C:14-10. We construe that provision
in accordance with established principles of statutory
interpretation. The Legislature directs that in the
construction of its statutes, “words and phrases shall be
read and construed with their context, and shall, unless
inconsistent with the manifest intent of the legislature or
unless another or different meaning is expressly indicated,
be given their generally accepted meaning, according to the
approved usage of the language.” N.J.S.A. 1:1-1. Our task
is to ascertain the Legislature’s intent, reflecting its
chosen language, and to give the words of the statute
“‘their generally accepted meaning.’” State v. Marquez,
202 N.J. 485, 499 (2010) (quoting N.J.S.A. 1:1-1). We
“‘effectuat[e] the legislative plan as it may be gathered
from the enactment [when] read in full light of its
history, purpose and context.’” Koch v. Dir., Div. of
Taxation, 157 N.J. 1, 7 (1999) (quoting State v. Haliski,
140 N.J. 1, 9 (1995)).
10
The sponsor’s statement appended to the 2004 bill
indicated that the Legislature was imposing the SCVTF
penalty “to provide funding for the counseling and
treatment of victims and their families.” S. 781
(Sponsor’s Statement), 211th Leg. (Feb. 5, 2004). The
statute assesses a penalty against defendants convicted of
certain sex offenses.2 It provides, in relevant part:
a. In addition to any fine, fee,
assessment or penalty authorized under
the provisions of Title 2C of the New
Jersey Statutes, a person convicted of
a sex offense, as defined in [N.J.S.A.
2C:7-2], shall be assessed a penalty
for each such offense not to exceed:
(1) $2,000, when the conviction is a
crime of the first degree;
(2) $1,000, when the conviction is a
crime of the second degree;
(3) $750, when the conviction is a
crime of the third degree; and
(4) $500, when the conviction is a
crime of the fourth degree.
[N.J.S.A. 2C:14-10.]
To ensure that funds collected by virtue of this
statutory penalty are used to assist sex crime victims and
2
N.J.S.A. 2C:14-10 applies to offenders convicted of one or
more of the offenses enumerated in N.J.S.A. 2C:7-2. All
three of the offenses to which defendant pled guilty --
aggravated sexual assault, N.J.S.A. 2C:14-2(a); sexual
assault, N.J.S.A. 2C:14-2(b); and second-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4(a) -- are
enumerated in N.J.S.A. 2C:7-2 and therefore constitute
predicate sexual offenses for purposes of imposing the
SCVTF penalty. N.J.S.A. 2C:7-2; N.J.S.A. 2C:14-10.
11
their families, the Legislature created the SCVTF as a
“separate, nonlapsing, revolving fund” administered by the
Victims of Crime Compensation Board. N.J.S.A. 52:4B-43.2.
The fund is dedicated to “the provision of counseling and
treatment services to victims” of sex offenses enumerated
in N.J.S.A. 2C:7-2 pursuant to rules and regulations
promulgated by the Victims of Crime Compensation Board,
which is required to coordinate the treatment program with
the efforts of several other State agencies dedicated to
serving crime victims. N.J.S.A. 52:4B-43.2. In the
sponsor’s statement appended to the bill, the Legislature
indicated that the SCVTF penalty “would be in addition to
and not in lieu of any fine authorized by law.” S. 1619
(Sponsor’s Statement), 209th Leg. (Sept. 21, 2000).3
N.J.S.A. 2C:14-10 states that a person convicted of a
qualifying sex offense “shall” be assessed the statutory
penalty. Based on this language, it is clear that the
3
Pursuant to N.J.S.A. 2C:46-4.1, in determining the method
by which the State will allocate money collected from a
defendant in satisfaction of assessments imposed pursuant
to N.J.S.A. 2C:43-3.1, or restitution or fines imposed
pursuant to any provision of Title 2C or N.J.S.A. 2A:4A-43,
the Legislature assigned the SCVTF a low priority.
N.J.S.A. 2C:46-4.1(k) ranks the SCVTF eleventh among twelve
categories of assessments, fines and restitution. N.J.S.A.
2C:46-4.1(k). Accordingly, money paid by a defendant is
devoted to satisfying his or her SCVTF penalty only after
he or she has paid any restitution ordered and any
assessments or fines imposed pursuant to ten other
statutory provisions.
12
Legislature intended that an SCVTF penalty be imposed on
any defendant convicted of one or more of the sexual
offenses listed in N.J.S.A. 2C:7-2. “[T]he Legislature’s
choice of the word ‘shall,’ [] is ordinarily intended to be
mandatory, not permissive.” Jersey Cent. Power & Light Co.
v. Melcar Util. Co., 212 N.J. 576, 587-88 (2013); see also
State v. Thomas, 188 N.J. 137, 149-50 (2006) (stating that
“[t]he language of [N.J.S.A.] 2C:43-6(f) clearly indicates
that the Legislature meant enhancement to be mandatory: a
person ‘shall upon application of the prosecuting
attorney be sentenced by the court to an extended term’”
(quoting N.J.S.A. 2C:43-6(f))); Aponte-Correa v. Allstate
Ins. Co., 162 N.J. 318, 325 (2000) (“Under the ‘plain
meaning’ rule of statutory construction, the word ‘may’
ordinarily is permissive and the word ‘shall’ generally is
mandatory.”). That interpretation is underscored by the
statute’s legislative history; the sponsor’s statement
attached to the bill provided that a sex offender “would be
assessed a penalty for each such offense.” S. 781
(Sponsor’s Statement), 211th Leg. (Feb. 5, 2004). Thus,
N.J.S.A. 2C:14-10 mandates that a sentencing court impose
an SCVTF penalty on a defendant convicted of an offense
listed in N.J.S.A. 2C:7-2. If N.J.S.A. 2C:14-10 applies by
virtue of a predicate offense, the sentencing court lacks
13
the discretion to dispense with the SCVTF penalty.
N.J.S.A. 2C:14-10.
The sentencing court, however, has substantial
discretion with respect to the amount of the SCVTF penalty.
For each degree of offense, the Legislature set an SCVTF
penalty “not to exceed” a particular amount -- $2000 for a
first-degree offense, $1000 for a second-degree offense,
$750 for a third-degree offense and $500 for a fourth-
degree offense. N.J.S.A. 2C:14-10(a). The sponsor’s
statement attached to the bill confirmed that each degree
of offense would result in a penalty “not to exceed” the
amount prescribed in the subsection of the statute that
addresses that degree of offense. S. 781 (Sponsor’s
Statement), 211th Leg. (Feb. 5, 2004).
Notwithstanding the State’s contention, there is no
evidence that the Legislature intended the maximum SCVTF
penalty for a lower degree of offense to constitute the
minimum penalty for a higher degree offense. The
Legislature is fully conversant in the language necessary
to set minimum and maximum parameters for a monetary
penalty; it has used such language in other statutes. See,
e.g., N.J.S.A. 2C:43-3.1 (assessing defendants convicted of
certain offenses in amount “at least $100.00, but not to
exceed $10,000.00 for each such crime”); N.J.S.A. 39:4-50
14
(setting minimum and maximum fines for first and second
offenders in driving while intoxicated statute). Here, the
“not to exceed” language in N.J.S.A. 2C:14-10 imposes a
ceiling, not a floor, on the amount to be assessed as an
SCVTF penalty for each degree of offense. See Maticka v.
City of Atlantic City, 216 N.J. Super. 434, 439 (App. Div.
1987) (holding that regulation providing for emergency
assistance for families with dependent children imposed
maximum time period for that assistance with language “not
to exceed two calendar months”). Accordingly, a sentencing
court may impose a penalty in any amount, from a nominal
amount up to the statutory maximum based on the defendant’s
offense.
The issue at the center of this appeal is whether a
defendant’s ability to pay should be considered by the
sentencing court when it exercises its discretion to set an
SCVTF penalty within the applicable statutory range. The
Legislature specifically instructed sentencing courts to
consider a defendant’s ability to pay when determining
whether to impose several other monetary assessments. In
setting the amount of restitution ordered under N.J.S.A.
2C:44-2(c)(2), the sentencing court considers “all
financial resources of the defendant, including the
defendant’s likely future earnings;” and calibrates its
15
order “so as to provide the victim with the fullest
compensation for loss that is consistent with the
defendant’s ability to pay.” N.J.S.A. 2C:44-2(c)(2).
Similarly, the Legislature instructed a sentencing court
determining the “amount and method of payment of a fine” to
“take into account the financial resources of the defendant
and the nature of the burden that its payment will impose.”
N.J.S.A. 2C:44-2(c)(1).4 Similarly, the Legislature
specifically directed sentencing courts to consider a
defendant’s ability to pay as one of the factors relevant
to a Violent Crimes Compensation Board (VCCB) penalty.
N.J.S.A. 2C:43-3.1(a)(1); see also State v. Gallagher, 286
N.J. Super. 1, 22-23 (App. Div. 1995), certif. denied, 146
N.J. 569 (1996). In contrast, the Drug Enforcement Demand
Reduction penalty prescribed by N.J.S.A. 2C:35-15 is “fixed
at” an exact amount for each degree of offense by statute,
and accordingly “must be imposed regardless of [a]
4
The criteria prescribed for determination of a “fine”
under N.J.S.A. 2C:44-2(c)(1) do not apply to the assessment
of a penalty under N.J.S.A. 2C:14-10. The Legislature
defined the SCVTF penalty to be distinct from a “fine,”
notwithstanding the close connection between the two terms,
and their interchangeable use in some settings. The SCVTF
statute provides that the “penalty” imposed shall be “[i]n
addition to any fine, fee, assessment or penalty” otherwise
authorized by the Criminal Code. N.J.S.A. 2C:14-10.
Further, the legislative history of N.J.S.A. 2C:44-2
distinguished between the subject of that statute -- fines
-- and criminal penalties. See Senate Judiciary Committee
Statement to S. 738, 198th Leg. (May 15, 1978).
16
defendant’s ability to pay.” State v. Malia, 287 N.J.
Super. 198, 208 (App. Div. 1996).
The Legislature imposed no such constraints on
sentencing courts with respect to the SCVTF penalty
mandated by N.J.S.A. 2C:14-10. Nor did it prescribe
criteria for a court to apply when setting a particular
defendant’s SCVTF penalty within the statutory range.
N.J.S.A. 2C:14-10. However, the Legislature provided
general guidance in N.J.S.A. 2C:1-2(c). That statute
instructs courts that “‘discretionary powers conferred by
the code shall be exercised in accordance with the criteria
stated in the code and, insofar as such criteria are not
decisive, to further the general purposes’ of the Code.”
State v. Yarbough, 100 N.J. 627, 636 (1985) (quoting
N.J.S.A. 2C:1-2(c)), cert. denied, 475 U.S. 1014, 106 S.
Ct. 1193, 89 L. Ed. 2d 308 (1986). In Yarbough, an opinion
setting forth factors to guide sentencing courts
determining whether sentences for multiple offenses should
run consecutively or concurrently, this Court noted:
There being no specific criteria stated
in the Code, we must fashion standards
for discretion that will best further
the purposes of the Code. Those
purposes center upon the concept that
punishment of crime be based primarily
on principles of deserved punishment in
proportion to the offense and not
rehabilitative potential, and that in
17
dispensing that punishment, our
judicial system should attain a
predictable degree of uniformity.
[Id. at 636-37 (footnote omitted).]
Applying those governing principles, we identify two
factors that should be considered in a sentencing court’s
application of N.J.S.A. 2C:14-10. The court should begin
by considering the nature of the offense when determining a
defendant’s SCVTF penalty within the statutory range.
Placing emphasis on the defendant’s offense promotes the
principle of punishment in proportion to the offense and
promotes uniformity in sentencing. Consistent with the
legislative intent, setting the SCVTF penalty in light of
the defendant’s offense also furthers the goal of requiring
sex offenders to alleviate the financial burden imposed on
victims of sex crimes, their families and public resources.
See N.J.S.A. 2C:14-10; N.J.S.A. 52:4B-43.2.
Second, consistent with the Legislature’s express
direction in N.J.S.A. 2C:44-2 with respect to two other
discretionary decisions -- the calculation of restitution
and the imposition of fines -- a sentencing court setting
an SCVTF penalty should consider the defendant’s ability to
pay the amount assessed. An uncollectible SCVTF penalty
18
provides no treatment for crime victims and their families.5
If a substantial penalty is assessed against a defendant
who has no realistic prospect of satisfying it, that
penalty is destined to become an unsatisfied judgment that
benefits no one. In contrast, a penalty below the
statutory maximum that is paid over time from a defendant’s
modest income may impose a more meaningful punishment than
a higher penalty assessed against a defendant of
substantial means.
When it assesses a defendant’s ability to pay, the
sentencing court should look beyond the defendant’s current
assets and anticipated income during the period of
incarceration. The Legislature did not impose time
constraints on an SCVTF penalty. N.J.S.A. 2C:14-10. If
unpaid, the penalty does not evaporate at the conclusion of
the defendant’s custodial sentence or his or her period of
parole supervision. To the extent that a defendant’s
educational background and employment history may affect
5
When it passed N.J.S.A. 2C:14-10, the Legislature
recognized that collecting substantial monetary penalties
from defendants convicted of sex offenses, many of whom
serve long terms of incarceration, would pose a challenge.
The Assembly Appropriations Committee’s fiscal impact
statement that accompanied the bill noted that “[a]t this
point it is not known . . . how much of the estimated
amount from penalties would be collectible.” Assembly
Appropriations Committee Statement to S. 781, 211th Leg.
(Feb. 7, 2005).
19
his or her potential to achieve post-incarceration
employment and a steady income, such factors may be
relevant to the inquiry. For purposes of the sentencing
court’s determination, a defendant’s ability to pay should
not be measured only by current circumstances, but assessed
over the long term.6
Finally, the sentencing court should provide a
statement of reasons when it sets a defendant’s SCVTF
penalty within the statutory parameters. See State v.
Megargel, 143 N.J. 484, 502 (1996) (noting that “as in all
sentencing decisions, the trial court must clearly identify
the relevant sentencing factors and describe how it
exercised its discretion balancing these factors”); State
v. Marshall, 130 N.J. 109, 237 (1992) (noting that
sentencing courts are required to provide “a statement of
reasons to protect effective appellate review of the
sentences” (citing State v. Leggeadrini, 75 N.J. 150, 157
(1977))); Yarbough, supra, 100 N.J. at 643 (stating that
“the reasons for imposing either a consecutive or
6
We do not adopt any presumption that an incarcerated
defendant’s income will be insufficient to pay a maximum
fine. Nor do we adopt the multifactor test proposed by
defendant. We also reject defendant’s proposal that a
sentencing court hold a separate hearing to determine the
amount of the SCVTF penalty. The SCVTF penalty should be
assessed as part of the defendant’s sentencing hearing, not
in a separate proceeding.
20
concurrent sentence should be separately stated in the
sentencing decision”). As with respect to other
discretionary sentencing determinations, a statement of
reasons will apprise the parties, the victim, and the
public and will facilitate appellate review.
IV.
The judgment of the Appellate Division is reversed,
and the matter is remanded to the sentencing court for
resentencing, limited to a reconsideration of defendant’s
SCVTF penalty in accordance with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE PATTERSON’s opinion. JUDGE RODRÍGUEZ
(temporarily assigned) did not participate.
21
SUPREME COURT OF NEW JERSEY
NO. A-44 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS BOLVITO,
Defendant-Appellant.
DECIDED March 31, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE FERNANDEZ-VINA X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) --------------------- ------------------
JUDGE CUFF (t/a) X
TOTALS 6
1