Criminal Law – The Sentencing Process (Part 1)

by | Dec 16, 2015 | Blog, Criminal Law, Jail Time and Probation, Legal Procedures

With regard to the sentencing of defendants who have been convicted of a criminal offense, the sentence is supposed to result from the balancing of aggravating and mitigating factors which are then applied to the sentencing range for the particular offense. The sentencing range depends on the degree of the offense, as determined by the legislature. The applicable aggravating and mitigating factors are also determined by the legislature, with limited exceptions for a few factors that were created by the New Jersey Appellate Division and Supreme Court through case law.

The fact that the vast majority of criminal cases resolve by way of a plea bargain tends to make sentencing fairly straightforward. This is because a negotiated sentence that is arrived at through plea bargaining between the defense attorney and prosecutor is presumptively reasonable. See State v. Spinks, 66 N.J. 568, 573 (1975). Therefore, when a negotiated plea bargain calls for probation or a fixed number of years in prison, a judge’s decision to sentence a defendant consistent with the bargain will almost never present an issue for appeal. That is because neither the prosecution nor the defense will generally have a good basis to appeal a sentence that they themselves agreed to.

On the other hand, sentencing can be extremely complicated when there is no negotiated plea agreement. This is typically the situation that occurs after a trial and guilty verdict. Obviously, in the case of a “not guilty” verdict, there will be no sentence at all since a sentence is the punishment for a crime and there can be no punishment without a finding of guilt.

Aside from the required balancing of dozens of aggravating and mitigating factors, there are issues surrounding whether convictions for multiple offenses should call for concurrent or consecutive sentences. Concurrent sentences are sentences that run at the same time. Consecutive sentences are sentences that run one after the other. By way of example, two concurrent three-year prison sentences would equate to a three-year net sentence. Two consecutive three-year prison sentences would equate to a six-year net sentence.

In determining whether non-negotiated sentences should run consecutive or concurrent, courts must apply a set of factors distinct from the aggravating and mitigating factors. Those factors, endorsed by the New Jersey Supreme Court in the case of State v. Yarbough, 100 NJ 627 (1985), are as follows:

  1. Whether the crimes and their objectives were predominantly independent of each other;
  2. Whether the crimes involved separate acts of violence or threats of violence;
  3. Whether the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
  4. Whether any of the crimes involved multiple victims; and
  5. Whether the convictions for which the sentences are to be imposed are numerous.


If the answer to any of these five questions is “yes”, that factor should weigh in favor of a consecutive sentence. If the answer is “no”, a concurrent sentence is more appropriate.

The other relevant Yarbough criteria are that: (6) “there can be no free crimes in a system for which the punishment shall fit the crime”; (7) “there shall be no double counting of aggravating factors”; and (8) “successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.”

Regarding Yarbough factor (6), “there can be no free crimes in a system for which the punishment shall fit the crime”, the state can always argue that a separate offense should run consecutively so that it is not sentenced as a “free” crime. The stronger counter-arguments are that even a concurrent sentence affects parole eligibility and will show up in a defendant’s criminal record and work against him if he is ever charged with a subsequent offense. Moreover, if the state could just rely on the existence of a separate offense to justify a consecutive sentence, there would be no no need for any of the Yarbough criteria and related analysis, i.e. the only necessary criterion would be if there was more than one offense.

Regarding Yarbough factor (7), “there shall be no double counting of aggravating factors”, this means that if an aggravating factor was used to increase the length of a sentence for one crime, that same factor cannot be used to justify the sentence running consecutive to another sentence. As will be discussed below, a related rule is that if a factor is used by the legislature to increase the degree and permissible range of an offense, that same factor cannot be used to increase the length of the sentence within the permissible range. By now, the complexities in non-negotiated sentencing should be evident. The related issue of jail credits is not addressed here because it adds further complexities to sentencing that merit their own detailed discussion.

Regarding Yarbough factor (8), “successive terms for the same offense should not ordinarily be equal to the punishment for the first offense”, an example provides the best explanation. If a defendant qualifies for consecutive sentences on two second degree crimes, the sentencing range for each crime is between five and ten years in prison. Therefore, if the defendant receives a seven year sentence on the first offense, the consecutive sentence should ordinarily be for six or five years, i.e. “not equal to” the seven years given for the first offense. Note that notwithstanding the fact that eight factors exist, if multiple victims exist under factor (4), consecutive sentences will likely be affirmed even if the other seven factors weigh in favor of concurrent sentences. See for example, the transcript from the case of State v. Wikander, where I handled to the remanded sentencing proceedings before the trial court. Compare the transcribed arguments with the ultimate appellate decision affirming consecutive sentences.