State v. William A. Case, Jr. (072688) , 220 N.J. 49 ( 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. William A. Case, Jr. (A-45-13) (072688)
Argued October 7, 2014 -- Decided December 2, 2014
ALBIN, J. writing for a unanimous Court.
In this case, the Court reviews whether the trial court misapplied the sentencing principles of the Code of
Criminal Justice in imposing a sentence that includes a parole disqualifier.
Defendant waived his right to a jury trial and was convicted of second-degree luring, among other crimes,
at the conclusion of a bench trial. The convictions were based on Internet conversations between defendant and a
law enforcement officer impersonating a fourteen-year-old female named “Amanda.”
The State’s primary witness was Detective Christopher Hallet of the Atlantic County Prosecutor’s Office
Computer Crimes Unit. In August 2008, Detective Hallet created a fictitious online profile of a fourteen-year-old
female named Amanda and placed her profile in an Internet chat room. Shortly thereafter, on August 14, 2008,
defendant directly contacted Amanda through instant messaging. Over the course of the next six weeks, defendant
engaged in four additional online conversations with Amanda, discussing intimate and sexually explicit subjects.
On several occasions, they discussed the possibility of engaging in sexual acts. During their final talk on September
24, 2008, defendant agreed to meet Amanda that day at “The Brickworks” in Mays Landing. After defendant pulled
his truck into The Brickworks parking lot, law enforcement officers took him into custody. Following his arrest,
defendant was interviewed by the police. He claimed that he did not intend to do anything with Amanda and only
“wanted to explain to her that this isn’t right.”
Defendant testified and offered a diminished-capacity defense. Then twenty-nine years old, defendant
stated that during his years as a professional firefighter and emergency medical technician (EMT), he experienced
traumatic events that caused him to suffer a mental breakdown. He repeated that he did not intend to engage in
sexual acts with Amanda. He denied using the Internet to search for “child pornographic materials,” and police did
not find any such materials on his home computer or in his apartment. Defendant called three mental health experts
to support his diminished-capacity defense. All three expressed the view that defendant suffered from post-
traumatic stress and did not possess the requisite mental state to commit the crimes charged. The defense also called
a number of character witnesses who testified to defendant’s trustworthiness and good reputation in the community.
The State’s expert rejected the validity of the diminished-capacity defense, finding that defendant “engaged in a
series of purposeful goal-directed behaviors” that led him to an intended sexual liaison with a minor.
In finding defendant guilty, the trial court rejected the defense of diminished capacity. The court accepted
the testimony that events witnessed by defendant as an EMT and firefighter, such as the discovery of dead children,
had “a traumatic effect” on him. Nonetheless, it did not believe that defendant’s psychological problems deprived
him of the ability to engage in purposeful conduct. The court highlighted that defendant was able to navigate the
Internet and into chat rooms, and that defendant had visited Internet chat rooms “to speak to females for ten years”
before conversing online with Amanda.
The same judge who presided over the bench trial imposed defendant’s sentence. Defendant presented nine
mitigating factors and the State presented two aggravating factors. The court found mitigating factor seven only --
no history of prior delinquency or criminal activity. The Court addressed two other proposed mitigating factors that
it rejected, but it did not give any reasons for disregarding the remaining factors advanced by defendant. The Court
found both aggravating factors proposed by the State, aggravating factor three -- risk that defendant will commit
another offense, and nine -- need for deterrence.
Defendant’s most serious offense, attempted luring, is a second-degree crime with a range of imprisonment
between five and ten years. The trial court imposed an aggregate custodial term of eight years with a four-year
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parole disqualifier. In addition, the court ordered defendant placed on parole supervision for life, that he register as
a sex offender, that he forfeit his public employment as a firefighter, that he not possess a device with Internet
capability unless required for employment, and that he submit to random searches of his computer or other Internet-
capable device.
The Appellate Division affirmed defendant’s conviction and sentence in an unpublished opinion. This
Court granted defendant’s petition for certification limited to the issue of whether he was properly sentenced to a
discretionary parole disqualifier. 216 N.J. 361 (2013).
HELD: The sentencing proceeding in this case was flawed for several reasons, including the trial court’s finding of a
critical aggravating factor that was not based on credible evidence in the record. The trial court also failed to articulate
clearly how the aggravating and mitigating factors were balanced to arrive at the sentence.
1. In determining the appropriate sentence to impose within the statutory range, judges first must identify any
relevant aggravating and mitigating factors. The finding of any factor must be supported by competent, credible
evidence in the record. Whether a sentence should gravitate toward the upper or lower end of the range depends on a
balancing of the relevant factors. To facilitate meaningful appellate review, trial judges must explain how they
arrived at a particular sentence. (pp. 15-19)
2. The sentencing court, when clearly convinced that the aggravating factors substantially outweigh the mitigating
factors, may sentence a defendant to a minimum term not to exceed one-half of the term allowed by the statute. In
doing so, however, the court must specifically place on the record the aggravating factors which justify the
imposition of a minimum term. (pp. 19-20)
3. Here, sentencing jurisprudence requires that the Court vacate defendant’s sentence. First, the weight given by the
trial court to aggravating factor three, the risk that defendant will commit another offense, was based not on credible
evidence in the record, but apparently on the unfounded assumption that defendant had pursued minors through the
Internet on previous occasions. The trial court did not give a reasoned explanation for its conclusion that this first-
time offender presented a risk to commit another offense. (pp. 20-22)
4. The trial court also did not sufficiently explain its reason for placing particular emphasis on aggravating factor
nine—the need for both specific and general deterrence. Although the Court does not suggest that aggravating
factor nine cannot be credited here, the issue is how much weight should be given to that factor. In this case, the
court did not adequately explain its decision to give that factor “particular emphasis.” (pp. 22-23)
5. Defendant presented nine mitigating factors, and yet the court addressed only three. Evidence in the record -- if
credited by the trial court -- might have supported a finding of some of the other factors. The court was obliged to
give reasons for rejecting mitigating factors brought to its attention or for accepting them if sufficiently grounded in
the evidence. In addition, the trial court did not engage in a qualitative analysis of the sentencing factors it found,
which was essential before imposing a period of parole disqualification. Further, on the record before the Court,
there is insufficient support for the trial court’s conclusion that, clearly and convincingly, the aggravating factors
substantially outweighed the mitigating factors. (pp. 23-26)
The judgment of the Appellate Division is REVERSED, defendant’s sentences are VACATED, and the
matter is REMANDED to the trial court to conduct a sentencing proceeding consistent with this opinion within
thirty days. The new proceeding will include current and relevant information on an appropriate sentence.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA and
SOLOMON; and JUDGE CUFF (temporarily assigned); join in JUSTICE ALBIN’s opinion.
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SUPREME COURT OF NEW JERSEY
A-45 September Term 2013
072688
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM A. CASE, JR., a/k/a
WILLIAM ANTHONY CASE,
Defendant-Appellant.
Argued October 7, 2014 – Decided December 2, 2014
On certification to the Superior Court,
Appellate Division.
Michael J. Confusione argued the cause for
appellant (Hegge & Confusione, attorneys).
Kathleen E. Bond, Assistant Prosecutor,
argued the cause for respondent (James P.
McClain, Atlantic County Prosecutor,
attorney; Deborah A. Hay, Special Deputy
Attorney General, of counsel and on the
brief).
JUSTICE ALBIN delivered the opinion of the Court.
The New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to
2C:104-9, sets forth detailed sentencing guidelines to channel
the discretion of trial judges to ensure fair and uniform
sentences. This approach is intended to minimize the potential
for idiosyncratic and disparate sentencing. Our judges are
given wide discretion to sentence within the range prescribed by
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a criminal statute, but that discretion is not unconstrained.
In fixing a sentence within the statutory range, a judge must
determine whether specific aggravating or mitigating factors are
grounded in credible evidence in the record and then weigh those
factors. A period of parole disqualification may be imposed,
but only if the judge clearly and convincingly determines that
“the aggravating factors substantially outweigh the mitigating
factors.” N.J.S.A. 2C:43-6(b). Central to the success of this
process is the requirement that the judge articulate the reasons
for imposing sentence.
In this case, the sentencing judge found a critical
aggravating factor based on unfounded assumptions rather than
evidence in the record. That unsupported factor was then used
to justify not only a sentence at the higher end of the range,
but also a parole disqualifier. In addition, the judge failed
to articulate reasons to justify the sentence -- in particular,
how the aggravating and mitigating factors were qualitatively
weighed in coming to the term of imprisonment for this first-
time offender. The Appellate Division affirmed this flawed
sentencing process.
Accordingly, we are compelled to reverse the judgment of
the Appellate Division, vacate the sentence, and remand for new
sentencing proceedings.
4
I.
A.
At the conclusion of a bench trial in March 2012, a
Superior Court judge convicted defendant, William A. Case, Jr.,
of five counts of second-degree attempted luring of a minor,
N.J.S.A. 2C:13-6; five counts of third-degree attempted
endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:24-4; and one count of fourth-degree attempted criminal
sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3(b).
Defendant was acquitted of second-degree attempted sexual
assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c).1 The
convictions were based on Internet conversations between
defendant and a law enforcement officer impersonating a
fourteen-year-old female named “Amanda.”
The State’s primary witness was Detective Christopher
Hallet of the Atlantic County Prosecutor’s Office Computer
Crimes Unit. In August 2008, Detective Hallet created a
fictitious online profile of a fourteen-year-old female named
Amanda. Detective Hallet assumed the identity of Amanda on the
Internet. In the profile created for Amanda, Detective Hallet
presented the photograph of a fourteen-year-old girl and
1 Defendant waived his right to a jury trial.
5
described her interests as “cheerleading” and “hanging with her
friends.”2
After Detective Hallet placed Amanda’s profile in an
Internet chat room, defendant directly contacted her through
instant messaging. Instant messaging allowed defendant to
engage in private Internet conversations with Amanda unobserved
by others in the chat room. During his first conversation with
Amanda on August 14, 2008, defendant identified himself as a
twenty-five-year-old male from Absecon, and she identified
herself as a fourteen-year-old female high school student from
the Mays Landing area. Their hour-long conversation touched on
intimate and sexually explicit subjects. Here are some
examples.
Defendant asked Amanda whether she was a virgin and, at one
point, commented that he would have asked her out if she were
not so young. She replied, “it would be cool to go out with an
older guy . . . with a driver’s license.” During this Internet
conversation, defendant sent a photograph of himself and asked
Amanda if he was “cute enough to jump, roll down on top of, and
give [] a kiss.” He also inquired about her sexual experiences,
the size of her breasts, and whether she would “walk around
naked for [him].” Their chat was sprinkled with Internet
2 The photograph was of a female police officer when she was
fourteen years old.
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abbreviations, such as LOL (laugh out loud), and emoticons, such
as a smiley face and a face with a tongue sticking out. The
conversation developed from defendant saying, “[m]aybe in a
couple of years, we could hook up,” to asking Amanda if she
would “want to have sex.” When Amanda inquired whether he
wanted to have sex, he said, “yeah,” and when she asked where,
he said, “[y]our place . . . [o]r my place,” but added, “the age
thing scares me.”
More than three weeks later, on September 8, 2008,
defendant initiated a second hour-long Internet chat with Amanda
and asked if she still wanted to “hook up.” Again, defendant
engaged in a sexually explicit conversation with Amanda. He
also asked a number of times whether he could go to her home.
At one point, he questioned whether she was “the cops” because
he was not “about to lose [his] life because of this.”
Consistent with the first conversation, he asked if she would
“get naked for” him and suggested that they could “fool around
in the backseat” of his truck.
On September 17 and 22, 2008, defendant again initiated
online chats with Amanda. In those conversations, defendant
continued to ask Amanda sexually explicit questions. He also
asked for directions to her house, and the two discussed the
possibility of engaging in sexual acts. During their fifth and
final online talk, on September 24, defendant and Amanda again
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discussed possibly engaging in sexual acts. They agreed to meet
that day at “The Brickworks” in Mays Landing. After defendant
pulled his truck into The Brickworks parking lot, law
enforcement officers took him into custody. Following his
arrest, defendant was interviewed by the police. He claimed
that he did not intend to “do anything with [Amanda]” and only
“wanted to explain to her that this isn’t right.”
Defendant testified at his trial and offered a diminished-
capacity defense. Defendant, then twenty-nine years old, stated
that during his years as a professional firefighter and
emergency medical technician (EMT), he experienced traumatic
events that caused him to suffer a mental breakdown. He
explained that the Internet was a “fantasy world[,] . . . an
escape from what [he] had not been able to do out in society,”
and that he would not ordinarily speak with persons who
identified themselves as minors. He repeated that he did not
intend to engage in sexual acts with Amanda. He denied using
the Internet to search for “child pornographic materials,” and
indeed the police did not find any such materials on his home
computer or in his apartment, which were searched pursuant to a
warrant.
Defendant called three mental health experts to support his
diminished-capacity defense. Dr. Kenneth J. Weiss, a
psychiatrist, testified that defendant suffered from a number of
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mental disorders, including post-traumatic stress disorder
(PTSD). He explained that there was no “clinical evidence that
[defendant] would ever have any interest in fourteen-year-old
girls in reality.” Dr. Elliot Atkins, a psychologist, testified
that defendant’s work experience caused him “elevated levels of
anxiety from the post-traumatic stress disorder,” which, in
turn, led him to create a “fantasy world” on the Internet and to
chat with Amanda. He also opined that defendant was chronically
depressed and suicidal. Another psychologist, Dr. John Hubert
White, who treated defendant for PTSD, expressed his opinion
that despite defendant’s Internet chats with Amanda, defendant
did not intend to have “sexual relations with her.” All three
experts expressed the view that defendant did not possess the
requisite mental state to commit the crimes charged.
The State’s expert psychiatrist, Dr. Daniel Paul
Greenfield, rejected the validity of a diminished-capacity
defense, finding that defendant “engage[d] in a series of
purposeful goal-directed behaviors” that led him to an intended
sexual liaison with a minor.
The defense also called a number of character witnesses,
fellow firefighters, family members, and friends, who testified
to defendant’s trustworthiness and good reputation in the
community.
B.
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In finding defendant guilty of attempted luring, attempted
child endangerment, and attempted criminal sexual contact, the
trial court rejected the defense of diminished capacity. The
court accepted the testimony that events witnessed by defendant
as an EMT and firefighter, such as the discovery of dead
children, had “a traumatic effect” on him. The court also
accepted the diagnoses of the expert witnesses, all of whom
agreed that defendant suffered from “PTSD, moderate to severe
depression, and lack of judgment.” The court, however, did not
believe that defendant’s psychological problems deprived him of
the ability to engage in purposeful conduct. The court found
that defendant’s ability to perform as an exemplary firefighter
and EMT was inconsistent with the notion that he was “so
traumatized by the events in his life” that he was living in a
fantasy world on the Internet or impaired in understanding the
nature of his online conduct.
The court rejected the psychiatric and psychological expert
testimony of the defense witnesses and adopted the testimony
offered by the State’s expert, Dr. Greenfield. The court
concluded that “defendant acted purposely, intentionally, and
with the goal to meet and have a sexual liaison with a fourteen-
year-old girl.” The court highlighted that defendant was able
to navigate through the Internet and into chat rooms, that he
did so since he was fifteen years old, and that he visited a
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chat room “entitled older for younger.” In particular, the
court noted that defendant had visited Internet chat rooms “to
speak to females for ten years” before conversing online with
Amanda. The court also emphasized that defendant, at age
twenty-five, was well versed in using Internet jargon and
emoticons. Finally, the court dismissed defendant’s explanation
given to police after his arrest -- that “he thought [Amanda]
was eighteen or nineteen” and that “he had no intentions of
having sex with Amanda,” but “merely [intended] to teach her a
lesson.”
C.
The same judge who presided over the bench trial imposed
sentence. Before sentencing, defendant presented nine
mitigating factors: “defendant’s conduct neither caused nor
threatened serious harm,” N.J.S.A. 2C:44-1(b)(1); “defendant did
not contemplate that his conduct would cause or threaten serious
harm,” N.J.S.A. 2C:44-1(b)(2); “defendant acted under a strong
provocation,” N.J.S.A. 2C:44-1(b)(3); “[t]here were substantial
grounds tending to excuse or justify the defendant’s conduct,
though failing to establish a defense,” N.J.S.A. 2C:44-1(b)(4);
“[t]he victim of the defendant’s conduct induced or facilitated
its commission,” N.J.S.A. 2C:44-1(b)(5); “defendant has no
history of prior delinquency or criminal activity or has led a
law-abiding life for a substantial period of time before the
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commission of the present offense,” N.J.S.A. 2C:44-1(b)(7);
“defendant’s conduct was the result of circumstances unlikely to
recur,” N.J.S.A. 2C:44-1(b)(8); “[t]he character and attitude of
the defendant indicate that he is unlikely to commit another
offense,” N.J.S.A. 2C:44-1(b)(9); and “[t]he imprisonment of the
defendant would entail excessive hardship to himself or his
dependents,” N.J.S.A. 2C:44-1(b)(11).
The State presented two aggravating factors: “[t]he risk
that the defendant will commit another offense,” N.J.S.A. 2C:44-
1(a)(3), and “[t]he need for deterring the defendant and others
from violating the law,” N.J.S.A. 2C:44-1(a)(9). In support of
those aggravating factors, the State contended that over an
approximately six-week period, “defendant doggedly went on the
computer on at least five occasions . . . in search of [the]
same young girl.” The State submitted that defendant did not
meet Amanda online by happenstance, but instead “[made] a
concerted effort to reach [out] to her.”
Defense counsel argued that neither aggravating factor
applied because the offense was aberrational -- no evidence was
“presented that [defendant] ever committed an offense like this
before.” The defense stressed that, at the time of the offense,
defendant was suffering from PTSD and depression and that, in
the four years since his arrest, he had been offense-free. The
defense also noted that defendant had led a law-abiding and
12
honorable life as a firefighter, was engaged to be married, and
was the father of three young children -- one just three weeks
old -- whom he supported. Finally, the defense contended that
deterrence was not a factor because defendant was subject to
Megan’s Law registration and community supervision for life.
Speaking directly to the court, defendant expressed remorse
and stated that he remained in therapy to “address [his] issues”
and “to become a better person.” One of defendant’s sisters
told the court that he was a “great brother” as well as a “good
father” and “good uncle.” Another sister recited the hardships
her family had suffered since defendant was taken into custody.
Last, his mother stated that defendant “was doing well in
treatment” and had “kept his family intact.” She expressed her
fear that her son would “come out of [prison], a broken man,
more broken than he is right now.”
In imposing sentence, the court generally incorporated the
findings it made when it adjudicated defendant guilty of the
various offenses related to the Internet chats. The court
specifically found mitigating factor seven applicable because
defendant had no history of criminal, juvenile, or domestic-
violence offenses and because he otherwise had led a law-abiding
life. The court rejected the defense’s contention that
“defendant did not contemplate that his conduct would cause . .
. serious harm,” mitigating factor two, N.J.S.A. 2C:44-1(b)(2),
13
stating that it had “discounted the testimony of the defense
experts” in convicting defendant. The court also rejected the
defense’s argument in support of mitigating factor five,
N.J.S.A. 2C:44-1(b)(5) -- that Detective Hallet induced or
facilitated the crime. The court noted that defendant initiated
the conversations with Amanda and steered them in a sexual
direction. However, the court did not give any reasons for
disregarding the remaining mitigating factors advanced by
defendant.
The court found aggravating factors three, N.J.S.A. 2C:44-
1(a)(3) (risk of defendant committing another offense), and
nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The court
placed “particular weight on aggravating factor three” for the
following reasons: (1) “defendant admitted that he had been
going into Internet chatrooms to speak to females for ten years”
before his online encounter with Amanda; (2) defendant
“testified that at least one of the chatrooms he entered was
titled, ‘Older for Younger’”; (3) defendant was “not a novice in
the world of Internet chatrooms”; (4) defendant was “well-
versed” in speaking on the Internet and in using “emoticons”;
and (5) defendant used instant messaging rather than engage
Amanda in conversation in the chat room.
The court also placed “particular emphasis on aggravating
factor nine” because “adult predators of young girls must be
14
deterred” and because the “need to deter this particular
defendant and others from these types of crimes is substantial.”
Without any further analysis, the court then determined that the
aggravating factors substantially outweighed the sole mitigating
factor that defendant had previously led a law-abiding life.
The court imposed concurrent eight-year prison terms with a
four-year period of parole disqualification on the five counts
of attempted luring; concurrent three-year terms with a one-year
parole disqualifier on the five counts of attempted child
endangerment; and a concurrent one-year term on the one count of
attempted sexual contact. Defendant received an aggregate
custodial term of eight years with a four-year parole
disqualifier. The court imposed $11,305 in assessments,
penalties, and surcharges.
In addition, the court ordered that defendant be placed on
parole supervision for life, N.J.S.A. 2C:43-6.4; that he
register as a sex offender, N.J.S.A. 2C:7-2; that he forfeit his
public employment as a firefighter, N.J.S.A. 2C:51-2; that he
not possess a device with Internet capability unless required
for employment, N.J.S.A. 2C:43-6.6; and that he submit to random
searches of his computer or other Internet-capable device.
Defendant appealed.
D.
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The Appellate Division affirmed defendant’s conviction and
sentence in an unpublished opinion.3 The panel rejected
defendant’s argument that his sentence was excessive. The panel
was “satisfied the sentencing judge made findings of fact
concerning aggravating and mitigating factors that were based on
competent and reasonably credible evidence in the record, and
applied the correct sentencing guidelines.”
We granted defendant’s petition for certification “limited
to the issue of whether defendant was properly sentenced to a
discretionary parole disqualifier.” State v. Case, 216 N.J. 361
(2013).
II.
A.
Defendant argues that the court placed undue weight on
aggravating factors three (likely to reoffend) and nine (need to
deter) and overlooked mitigating factors supported by the
record. Defendant contends that in finding aggravating factor
three, the court engaged in sheer speculation by suggesting that
defendant had used the Internet in the past to target underage
females. Defendant also argues that in finding aggravating
3 Defendant raised a number of issues that he contended
undermined the legitimacy of the criminal convictions rendered
by the trial court. None of those issues are germane to the
appeal before us.
16
factor nine, the court disregarded the constraints placed on
defendant through parole supervision for life, Megan’s Law
registration, and Internet restrictions. Defendant also claims
that the court paid scant attention to his psychiatric illnesses
and, in particular, gave little consideration to the hardship
his imprisonment would have on his young children. Defendant
maintains that the court failed to recognize sentencing factors
grounded in the evidence or to weigh qualitatively those it did
find. Last, defendant claims the court erred in not adequately
articulating its reasons for imposing sentence. According to
defendant, in justifying the imposition of a parole
disqualifier, the court “simply announced” that the aggravating
factors substantially outweighed the mitigating factors.
B.
The State submits that the court did not abuse its
discretion in imposing a four-year period of parole
disqualification. The State disputes the contention that the
court “merely enumerate[d] the relevant factors” and contends
that adequate reasons were placed on the record to explain how
the court arrived at the sentence. The State argues that none
of the mitigating factors advanced by defendant, other than
mitigating factor seven, finds support in the record. In light
of the court’s imposition of concurrent prison terms, the State
17
maintains that the sentence was fair and does not “shock the
judicial conscience.”
III.
A.
We begin with an overview of the principles and structure
of the sentencing scheme of the Code of Criminal Justice. One
of the Code’s paramount goals is to eliminate arbitrary and
idiosyncratic sentencing so that similarly situated defendants
receive comparable sentences. State v. Natale, 184 N.J. 458,
485 (2005). Ensuring a reasonable degree of uniformity in
sentencing is an essential feature of our system of justice.
Ibid.
To achieve that end, the Code has established a framework
of structured discretion within which judges exercise their
sentencing authority. Ibid. Crimes are classified as first,
second, third, or fourth degree crimes in descending order of
seriousness, and each degree contains a range within which a
defendant may be sentenced. N.J.S.A. 2C:43-6(a). Although
judges generally exercise their discretion within the given
range, State v. Roth, 95 N.J. 334, 359 (1984), in specifically
defined circumstances, judges may impose sentences outside of
the statutory range.4 In this case, defendant was found guilty
4 Under circumstances permitted by the Code, judges may sentence
a defendant to an extended-term sentence above the ordinary
18
of attempted luring, a second-degree crime with a range of
imprisonment between five and ten years, N.J.S.A. 2C:43-6(a)(2);
attempted child endangerment, a third-degree crime with a range
of between three and five years, N.J.S.A. 2C:43-6(a)(3); and
attempted sexual contact, a fourth-degree crime with a range of
up to eighteen months, N.J.S.A. 2C:43-6(a)(4).
In determining the appropriate sentence to impose within
the range, judges first must identify any relevant aggravating
and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b)
that apply to the case. State v. Fuentes, 217 N.J. 57, 72
(2014). The finding of any factor must be supported by
competent, credible evidence in the record. Roth, supra, 95
N.J. at 363. Speculation and suspicion must not infect the
sentencing process; simply put, the finding of aggravating or
mitigating factors must be based on evidence.
Mitigating factors that “are called to the court’s
attention” should not be ignored, State v. Blackmon, 202 N.J.
283, 297 (2010), and when “amply based in the record . . . ,
they must be found,” State v. Dalziel, 182 N.J. 494, 504 (2005).
In short, mitigating factors “supported by credible evidence”
range, State v. Pierce, 188 N.J. 155, 161 (2006), to a “prison
term appropriate to an offense one degree lower,” State v.
Megargel, 143 N.J. 484, 512 (1996), or even to a probationary
term for a crime with a presumption of incarceration, State v.
Jarbath, 114 N.J. 394, 414-15 (1989).
19
are required to “be part of the deliberative process.” Dalziel,
supra, 182 N.J. at 505.
Whether a sentence should gravitate toward the upper or
lower end of the range depends on a balancing of the relevant
factors. Fuentes, supra, 217 N.J. at 72. “[W]hen the
mitigating factors preponderate, sentences will tend toward the
lower end of the range, and when the aggravating factors
preponderate, sentences will tend toward the higher end of the
range.” Natale, supra, 184 N.J. at 488. The balancing process,
however, is more than counting whether one set of factors
outnumbers the other. Fuentes, supra, 217 N.J. at 72. Rather,
the court must qualitatively assess the relevant aggravating and
mitigating factors, assigning each factor its appropriate
weight. Id. at 72-73.
To facilitate meaningful appellate review, trial judges
must explain how they arrived at a particular sentence. Id. at
74; see also R. 3:21-4(g) (“[T]he judge shall state reasons for
imposing [a] sentence including . . . the factual basis
supporting a finding of particular aggravating or mitigating
factors affecting sentence.” (emphasis added)). Appellate
review of sentencing is deferential, and appellate courts are
cautioned not to substitute their judgment for those of our
sentencing courts. State v. Lawless, 214 N.J. 594, 606 (2013).
But the deferential standard of review applies only if the trial
20
judge follows the Code and the basic precepts that channel
sentencing discretion. When the aggravating and mitigating
factors are identified, supported by competent, credible
evidence in the record, and properly balanced, we must affirm
the sentence and not second-guess the sentencing court, Natale,
supra, 184 N.J. at 489, provided that the sentence does not
“shock the judicial conscience,” Roth, supra, 95 N.J. at 365.
On the other hand, if the trial court fails to identify relevant
aggravating and mitigating factors, or merely enumerates them,
or forgoes a qualitative analysis, or provides little “insight
into the sentencing decision,” then the deferential standard
will not apply. See State v. Kruse, 105 N.J. 354, 363 (1987).
We now briefly turn to our jurisprudence on discretionary
parole disqualifiers.
B.
The sentencing court, when “clearly convinced that the
aggravating factors substantially outweigh the mitigating
factors,” may sentence a defendant to “a minimum term not to
exceed one-half of the term” allowed by the statute. N.J.S.A.
2C:43-6(b). In doing so, however, the court must “specifically
place on the record the aggravating factors . . . which justify
the imposition of a minimum term.” N.J.S.A. 2C:44-1(f)(1).
In Kruse, supra, we compared the standard for sentencing to
a term within the range (whether the court is persuaded “there
21
is a preponderance of aggravating or mitigating factors”) to the
standard for imposing a parole disqualifier (whether the court
is “clearly convinced that the aggravating factors substantially
outweigh the mitigating factors”). 105 N.J. at 359 (internal
quotation marks omitted); see N.J.S.A. 2C:43-6(b). We
emphasized that “[t]he different standard reflects the fact that
‘periods of parole ineligibility are the exception and not the
rule. They are not to be treated as routine or commonplace.’”
Ibid. (quoting State v. Martelli, 201 N.J. Super. 378, 382-83
(App. Div. 1985)). Again, critical to the sentencing process
and appellate review is the need for the sentencing court to
explain clearly why an aggravating or mitigating factor
presented by the parties was found or rejected and how the
factors were balanced to arrive at the sentence. Fuentes,
supra, 217 N.J. at 73.
IV.
Applying the principles of our sentencing jurisprudence
here requires that we vacate defendant’s sentence.
A.
First, the weight given by the trial court to aggravating
factor three, “[t]he risk that the defendant will commit another
offense,” N.J.S.A. 2C:44-1(a)(3), was based not on credible
evidence in the record but apparently on the unfounded
assumption that defendant had pursued minors through the
22
Internet on previous occasions. Although defendant admitted to
visiting Internet chat rooms since he was fifteen years old and
communicating with females -- and at one point visiting a chat
room entitled, “Older for Younger” -- the record does not
support the conclusion that he was consorting with or trolling
for minors as an adult. Communicating on the Internet through
slang and the use of emoticons is not evidence of a penchant for
criminal activity. Although defendant admitted to visiting a
chat room, “Older for Younger,” the record does not reveal
defendant’s age when he did so or the nature of the chat room.
Indeed, at all times, defendant denied ever seeking to sexually
importune a minor.
At one point during the first Internet chat, Amanda asked
defendant if he ever had a younger girlfriend, and he responded,
no, and then expanded by saying that he did have two prior
girlfriends who were about three years younger. During his
police interview after his arrest, defendant denied chatting
with “any other younger girls.” Defendant, moreover, denied
having “any kid porn” on his computer, and a police search of
his computer and home executed pursuant to a warrant evidently
did not uncover any such incriminating evidence. Tellingly,
during the trial, in framing a question to the State’s expert,
the trial judge referred to the lack of evidence tying defendant
to other incidents similar to the one with Amanda: “all we know
23
[is] that [defendant] was talking to women. We don’t know
anything about it, whether it was talking to children . . . all
we know is he was on the [I]nternet . . . for a period of ten
years.”
Additionally, the court’s finding of mitigating factor
seven, N.J.S.A. 2C:44-1(b)(7) -- that defendant had led a law-
abiding life and had no history of prior criminal or delinquent
conduct -- stood as a counterpoise to the finding of a risk that
defendant was likely to commit another offense. Although we do
not presume that aggravating factor three cannot coexist with
mitigating factor seven, here the trial court’s finding of this
aggravating factor is not grounded in competent, credible
evidence in the record. See Roth, supra, 95 N.J. at 363. The
court did not give a reasoned explanation for its conclusion
that this first-time offender presented a risk to commit another
offense.
B.
The trial court also did not sufficiently explain its
reason for placing “particular emphasis on aggravating factor
nine” -- the need for both specific and general deterrence.
(Emphasis added). We share the trial court’s view that “adult
predators of young girls must be deterred,” but we also have
recognized “that general deterrence unrelated to specific
deterrence has relatively insignificant penal value.” Jarbath,
24
supra, 114 N.J. at 405; see State v. Gardner, 113 N.J. 510, 519-
20 (1989) (“‘[T]he need to deter’ . . . encompasses two types of
deterrence: deterring (a) ‘the defendant’ and (b) ‘others’ from
committing crime.”). The undisputed medical testimony was that
this first-time offender suffered from PTSD and depression, and
in the four years between his arrest and trial, he underwent
psychological therapy. In those four years, by all accounts, he
was law-abiding and helping to raise and support a family. Upon
his release from prison, moreover, defendant will be subject to
parole supervision for life, Megan’s Law registration, and
random searches of his computer. Although we do not suggest
that aggravating factor nine cannot be credited here, the issue
is how much weight should be given to that factor. In this
case, the court did not adequately explain its decision to give
that factor “particular emphasis.”
C.
At his sentencing, defendant presented nine mitigating
factors for the court’s consideration, and yet the court
addressed only three, finding mitigating factor seven and
rejecting mitigating factors two and five. Mitigating factors
“called to the court’s attention” should not be simply ignored.
Blackmon, supra, 202 N.J. at 297. It is clear that some
mitigating factors deserved thoughtful consideration. For
example, the court should have explained why it was rejecting
25
mitigating factor eight (“defendant’s conduct was the result of
circumstances unlikely to recur”), mitigating factor nine
(“[t]he character and attitude of the defendant indicate that he
is unlikely to commit another offense”), and mitigating factor
eleven (“[t]he imprisonment of the defendant would entail
excessive hardship to himself or his dependents”). See N.J.S.A.
2C:44-1(b)(8), (9), and (11). Evidence in the record -- if
credited by the trial court -- might have supported a finding of
those factors.
At the time of trial, defendant was twenty-nine years old
and lived with his fiancée, who was pregnant with their baby,
and with their two-year-old daughter and his fiancée’s seven-
year-old daughter. Defendant had worked in Atlantic City as a
firefighter and emergency medical technician, and also had
served as a volunteer firefighter. Fellow workers and friends,
at trial, spoke of his otherwise good character and reputation.
We do not suggest that the trial court was required to
credit other mitigating factors beyond those it found. But the
court was obliged to give reasons for rejecting those mitigating
factors brought to its attention or accepting them if
sufficiently grounded in the evidence. Additionally, the court
was required to explain the weight it assigned to the factors it
found.
D.
26
We also conclude that the trial court did not engage in a
qualitative analysis of the sentencing factors it found, as
required by Kruse. The qualitative balancing of the factors was
essential before imposing a period of parole disqualification.
See Fuentes, supra, 217 N.J. at 72-73. We realize that any
qualitative analysis would have been defective because the court
imported into aggravating factor three the unfounded assumption
that defendant had previous online encounters with minors.
Further, on the record before us, there is insufficient support
for the trial court’s conclusion that, clearly and convincingly,
the aggravating factors substantially outweighed the mitigating
factors. See N.J.S.A. 2C:43-6(b).
We further note that the sentences imposed on the luring
and endangering convictions are internally inconsistent. The
court did not explain how, while weighing the same sentencing
factors, it arrived at a sentence above the midpoint for
attempted luring (eight years in the second-degree range between
five and ten years) and below the midpoint for attempted
endangering (three years in the third-degree range between three
and five years).
In conclusion, the sentencing proceeding in this case was
flawed for multiple reasons, and therefore we are compelled to
vacate the sentences on all charges and remand for a new
sentencing hearing.
27
V.
At the new sentencing hearing, the court should give full
consideration to all relevant evidence and all relevant
sentencing factors as of the day defendant stands before the
court. State v. Randolph, 210 N.J. 330, 354 (2012). As such,
the sentencing court may consider defendant’s conduct and
comportment while imprisoned, whether positive or negative.
Defendant is entitled to bring to the court’s attention any
rehabilitative or other constructive measures he has taken in
the intervening years. The State, likewise, is not limited in
its presentation. The only restriction placed on both parties
is that the evidence presented be competent and relevant.
VI.
For the reasons expressed, we reverse the judgment of the
Appellate Division and vacate defendant’s sentences for
attempted luring, attempted child endangerment, and attempted
sexual contact. We remand to the trial court to conduct a
sentencing proceeding consistent with this opinion within thirty
days.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily
assigned) join in JUSTICE ALBIN’s opinion.
28
SUPREME COURT OF NEW JERSEY
NO. A-45 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM A. CASE, JR., a/k/a
WILLIAM ANTHONY CASE,
Defendant-Appellant.
DECIDED December 2, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST VACATE/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7
29